HomeMy WebLinkAboutItem 6.3 Attachment D (2)
COMMENTS ON
MITIGATED NEGATIVE DECLARATION
EXHIBIT .lL
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DEPARTMENT Of TRANSPORTATION
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,l.W-.'-lD, CA 946z:J..0050 December 2311994
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ALA-580-18.90
SCH#94113020
ALA58().!-50
Ms. Jeri Ram
City of Dublin
100 Civic Plaza
Dubli.Tlf c...A.. ,.94568
RE: NEGATIVE DECLAI',,-A..ll0N FOR - Santa Rita Commercial Center (rezone
75+ acres from Planned Deve1ocme.:.."lt-Business Park/Industrial to a S:c....'ldard
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Planned Development. Tne project 'will also include a Site Development
Review and. TE-Tltative Parcel M2p. This project has a SpecL..qc Pl2..!."l. G...:."lQ
Ge..lleral Plac'1. Desigrtation of Ge.Tle.ral Corru.ner~;:.l The proposed Pl2..!."1.!"~ed
D 1 .. O' t" """'0000 r .al
eve.lOprne::.t wo:.:ld. 2..llOV'-l :Lor 2...:.:' tiU, square :::oot commero" center
which may i.:.tclv.de retail shops, offices, movie theaters and restal.1.c"""2...Tlts
among otlter uses.
Dear :M:s. Ram:
Than:.1<. you for incl-..:.cling the C:> 1';ornia State Depe.rtrnent of T!2..!.t.Spo.!. ~c.:icm in
the revie;..... process for i.-J..5 proposcl. \Ve have reviewed. the above refe:re!ic2d
document and fo!>v2..!Q the follo."d-,-i.~ CO!Il.ITIents.
....
There are two possfbie futu..:'e projects in the vicinity of this proposed
deve1opme...Tlt that shoUld be ta..~en ir.:o consideration. The first project is t.......e Bay
Area Rapid Tra...-..sit eBl- RT) District e,xtc""lSion to Live.rrnore which '''lill uT"iii7e the
media.."l or 1-580. 'vI.{ e rECOI!.1!!'.e,nd that the B...;RT District review &15 proposed
development. Tb.e s2Cor..d project is f-:.e reconstruction of the 1-580/1-680
L'1.terchange, whic..."'-t is ceyond {he MeaSil!e B project curre:.i.tly in, the e:1. y ~orr':1~-"t2.l
procesS. vV~l1.en bct...1L of these proposed p::ojects are constructed, the e..xisting State's
right-of-way may not be adequate a..."lU may require acquisition or 2.d~tion21 right-of
vlay.
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A Caltr2...1lS' F:l.croac.."'rtment Permit \vill be required for any work done \\'ithin the
State right-of-way. Before fu'l encro2.c-merd: perI!.lit can be issued, a completed.
aiJplication, final errvironmental doC'~entation and five (5) sets of pla.:."15 DUst be
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~J.b6itted to the follo1-\-2:.1g contact person: .
G. J. Barravini, Chief
Caltra..T15 District 4
1-Iaint2!ta-p.ce Semces arr.a Permits Branch
PD. Box 23660
Oa.ldar.c., C-4. 94623-0660
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December 23, 1994
Page 2
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Should you haY"e any questions regarding t'rris letter, please contact NorE:e...Tl.
Rodriguez of my ~Ff at (510) 286--6312
cc }l;1,~ f'1-,;ria-r-;...; c'f;:.f::> Cl~.L;.LG"r.O"'::'::
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Craig Goldblatt, :tvITC
Patricia PerrY, ABAG
Dennis Fay, "'j.]~-ned2. County C?"L~
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Sincerely,
JOE BROVv"'N"E
District Director I (j
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P.HII.L1P BADAL
District Branch Chief
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December 14, 1994
The Honorable Mayor and Members of the City Council
Members of the Planning Commission
City of Dublin
Dublin Civic'center
100 Civic Plaza
Dublin, CA 94568
RE: Santa Rita Commercial Center (P A 94-001)
Ladies and Gentlemen:
Reynolds & Brown is the developer and o\\'ner of a 60 acre mLxed use business park at Hopyard
and Interstate 580 in Pleasanton and in addition has purchased some properties in the Hacienda
Business Park. We have been actively involved in the master planning of the North Pleasanton
area since 1979 and are a panicipam 1...-1 the :\onh Pieasanton L'11provement District. In the past
five years, \ve have developed a number of p;-omotionalJregional shopping centers in the East Bay.
Those developers that are local understa.:.1C L'Ie sensitive bala.'lce between traffic cirC'da~ion al".d a
workable envi.ronment with the citize:;s.
\Ve understand that the Steering COl7'..IT'.it:e:: of the North Pleasanton Improvement District is
filing an objection to the development apprcval and negative declaration on this property. We
have not been able to review in detail the !ener and anacbments and therefore felt it a?propriate
to state our concerns in a separate letter. Our concerns fall under three main areas.
TRAFFIC CrRCULATI0~: We believe that the first criteria of any development is its
accesS points. the number of cpticDs allowed for the customer, and the elimi.iation of
bottlenecks in the site plan. The site plan that we have reviewed will create sig.Tlificant
traffic congestion at the Hacienda interchange and the nearby intersection. There is
effectively only one access point to t..'1lis project: Jn a scale of ~gnitude. this development
""in be over five times the size of our Marina Square center in 'San Leandro.
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C,)nc\)rd, CA 94520
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Honorable Mayor &. Members of the City Council
December 14, 1994
Page 2
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development not adequately handle its uaffic flow, your jurisdiction and the City of
Pleasanton will be affected. The citize:ls ",ill have the right to ask why did this happen a.:.id
shouldn't future development be cunailed until the problem is solved. As Nor.:h Pleasamon
properties must fund assessments for w.1.e next twenty five years, this is an option which is
unacceptable. Our conunitrnent must be for well-planned, multi faceted circulation systems
that are in place ""ith the development. Our push for both the Dublin hook ramps into
downtown Dublin and the retention of the Hopyard omit.11p rise above particular projects
and to this hig.her goal.
DEVELOP~fENT FAIR SHARE: \Ve are very concerned by the expeditious process fo:-
putting a tr2J.""TIc fee in place, v"ithou~ thorough STudy and comment. The only pe:-ceivec
reason is to be able to approve this project and pro..-ide a cap for the County Foper:ies.
\V'ni.le this may be in Dubli.t1'S best i..:..erest, our concern is that the real cost is not knO\'TD
for the futu:-e impro.....e:r.ents that ,,'il! be required or for the reimbursement of exist!r:g
beneficial imorovements that have bee:1 installed by Ple.asanton. The Heindel s~ud\'
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commissioned by your City detalls 2..:. approach to this solution which is apparently not
intended to be foUc\ved. Our conce;n is that tjljs development fulfill its full fair share for
the improvements necessitated by the project and be pa.--:. of the solution for the area. T :o.ke
your time to thin..l.; about this careriJUy. as a project of this magnitude will have lasting
impacts which may be difficult to mitigate at a later date.
RETIvfBl)RSE~{E"ST FOR DUBL!):" BOULEY ARQ: The City of Dublin has agreed to
reimburse P lea santon for the exte:.ision of Dublin Boulevard. Our understa...!ding is tn::.. this
payment of series of paymems is se~ond in line only to BART. Development will kick off
the requirement for repayment. Please carefully study what fees you are collecting 2!i.O the
ability to fi.1lfill your obligations. On the surface ,the proposed fee ,is substantially less th;..'1
surrounding areas on a per square foot ofla.Tld basis. As we collectively try to work
together to pursue regional traffic solutions and potential funding sources, all of the
parties will need to adequa:rely ha...:cle its share. In a push to conclude the Ccumy land
agreement and to respond to the desire of the develcperto get going, we are very
concerned that a fair share is nOt be:.ng paid and Dublin will lose one avenue for its costs in
the future.
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December 14, 1994
Page 3
Our comments are not directed at the use or the developmem. Our overriding concern is to
continue to see a logical and long range solution for the traffic circulation in this area. The Tn
Valley can withstand competition, but not at the expense of the master plan which the citizens
have accepted is soh-ing the issues as we go. To come back la~er and apologize or try to f.., the
problem later \'will be unacceptable.
We believe that the foregoing impacts should be studied and considered seriously to determine
whether or not they may ultimately have a significant effect on the environment. It is conceivable
to us that follow-ing careful analysis a ~egative Declaration could be drafted \-vith appropriate
conditions of approval to mitigate the adverse effects of the foregoing impacts. We trust that the
City is proceeding accordingly a11d lv-ill carefully review the development in light ortnese cone ems
and make the appropriate findings.
Thank you for your consideration of these cornments.
Sincerely,
REYNOLDS & BROW?\'
cy6 --U
Thomas K. Terrill
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December 22, 1994
!!.ECEIYED
DEC221994
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The Honorable Mayor and Members of the
City Council and Planning commission
city of Dublin
Dublin civic Center
100 civic Plaza
Dublin, CA 94568
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Re: Santa Rita Commercial Center; Application for Rezoning and
Proposed Neaative Declaration (PA 94-001)
Ladies and Gentlemen:
The undersigned are owners of properties and businesses in the
city of Pleasanton. More specifically, we collectively own more
than 500 acres of land in North Pleasanton which is part of the
North Pleasanton Improvement District ("NPID"). As you probably
know, the NPID has funded, among other things, the freeway
interchange construction and improvement projects along 1-580 at
Hopyard/Dougherty, Hacienda and Santa Rita/Tassajara.
All of us have been actively involved in land use planning and
policy issues in Pleasanton in coonection with the development
and operation of our properties and businesses. As such, we have
a critical interest in the integrity of the land use regulations
in Pleasanton, and that such regulations ensure a viable,
liveable and economically successful community. Because of the
close proximity of the cities in the Tri-Valley, that interest
extends to the impacts of development in adjacent communities,
such as Dublin. For this reason, we are keenly interested in the
impacts of development projects which will occur under the
Eastern Dublin Specific Plan and the implementation of the land
use planning policies contained in that Specific Plan.
The first project which has been proposed under that Specific
Plan is Homart's Santa Rita Commercial Center, which is to be
located on approximately 75 acres of land, bounded by 1-580,
Hacienda Drive and Dublin Boulevard. In order to implement this
project, Homart proposes to rezone th~ property. from Planned
Development - Business Park/Industrial (low coverage) to Planned
Development General Commercial. However, as discussed in the
attached memorandum prepared by Cassidy and Verges, it is very
difficult to conduct a meaningful review of this project because
the description of the project contained in the Initial
Study/Amended Negative Declaration is inadequate. For instance,
we understand that the Homart project will also require other
project approvals (such as SUbdivision/tentative map approval,
design review approval and a development agreement) which are not
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December 22, 1994
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described in any detail in the Initial Study/Amended Negative
Declaration. We believe that the other NPID property owners will
share our concern once they better understand the scope of this
project, which as previously noted is difficult to ascertain from
the materials which are currently available.
Naturally, this first project up for approval in Eastern Dublin
poses the issue of how Dublin intends to fulfill the planning and
policy commitments which it made in its Eastern Dublin Specific
Plan. In particular, those policies include assurance for the
provision of sufficient infrastructure (including transportation,
water and sewer) to serve buildout in the Eastern Dublin area
under the Eastern Dublin Specific Plan. We are concerned,
however, that the Homart approvals may proceed before these
implementation measures are identified and in place to assure
that the impacts of development in Eastern Dublin have been
adequately handled, both from an environmental standpoint and
under the enunciated policies in the Specific Plan.
As you know, Pleasanton has made a conscious effort to assure
sufficient infrastructure as development occurred in North
Pleasanton. For example, as previously mentioned, the NPID has
funded the construction or improvement of several interchanges
which benefit both Pleasanton and Dublin in order to acco~modate
development and growth in both Pleasanton and Dublin. Dublin is
a beneficiary of that infrastructure. We want to assure that
Dublin lives up to these responsibilities as it implements its
Specific Plan policies and appropriate mitigation measures for
the impacts of projects developed in Eastern Dublin.
In reviewing Homart's application for rezoning and the Initial
study for the project (produced under CEQA) , we are very
concerned that these responsibilities have not been fulfilled.
In order to ensure that you are fully informed on these issues,
we have retained the firm or Cassidy & Verges to review these
materials and prepare comments on our behalf. We enclose a copy
of those comments with this letter.
Ive hope that you will respond to these comments in the spirit in
which they are given: to ensure the integrity of the land use
approval process in Dublin as we have assured its attainment in
Pleasanton. We therefore ask that you review these comments,
respond to them, and implement the appropriate solutions through
additional environmental review, documentation and conditions of
approval to implement required Specific Plan pOlicies and
mitigate adverse project impacts, before the Homart project is
approved by Homart's rezoning proposal.
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December 22, 1994
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If you have any questions regarding our comments or need
additional information, you should not hesitate to call Stephen
K. Cassidy at the law offices of cassidy & Verges, at 415-788-
2020. We look forward to the public hearing process on this
project. Our representatives will be available at those hearings
to respond to your questions and concerns.
Respectfully submitted,
Callahan Property Company
Chawin Property, Inc.
East Bay B~nv
Longs Drugs, Inc.
Hacienda Motors
Eerrera aIds GMC cadillac Scab
Mozart Development Company
Prudential Realty Group
Rosewood Associates
Spieker Properties
Taubman Company
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CASSIDY & VERGES
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
20 CALIFORNIA STREET SUITE 500 SAN FRANCISCO, CAUFORNLA 94111
TELEPHONE (415) 738.2020 FACSIMilE (415) 788.2039
MEMORANDUM OF COMMENTS ON THE INITIAL STUDY/AMENDED NEGATIVE
DECLARATION AND REZONING APPLICATION FOR THE SANTA RITA
COMMERCIAL CENTER
I. INTRODUCTION
This Memorandum sets forth the initial comments of
Pleasanton property owners identified in their December 22, 1994,
letter to which this Memorandum is attached, on the Initial Study
and Mitigated Negative Declaration (dated November 1994) (the
"Initial study") and Amended Negative Declaration (dated November
22, 1994; the Initial Study and Amended Negative Declaration
hereinafter collectively referred to as the "Negative
Declaration"), and the proposed rezoning for the Santa Rita
commercial Center (the "Project"), prepared by the city of Dublin
(the "City"). For the reasons discussed below, we have concluded
that the Negative Declaration is both substantively and legally
inadequate, and the city should not adopt it, and that the
rezoning (and related proposed Project approva~s) is inconsistent
with the city's Eastern DUblin Specific Plan (the "Specific
Plan"), and the city should not approve it at this time. Because
of the voluminous material upon which the Negative Declaration
and the proposed rezoning rely, and because we have not yet
received all of the information necessary fully to review and
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critique the Negative Declaration and the Project, we reserve the
right to submit additional material enlarging upon the comments
contained in this Memorandum. To the extent required, we will do
so before the Planning commission hearing now scheduled for
January 3, 1995.
In general, we conclude that in preparing the Negative
Declaratibn, the city has failed to comply with the requirements
of the California Environmental Quality Act (Pub. Res. Code
5 21000, et .2iill.; "CEQA"), the Guidelines for Implementation of
CEQA (14 Cal. Code Regs. 5 15000, et seq.; the "CEQA Guidelinesll)
and the city of Dublin Environmental Guidelines (the "city
Environmental Guidelines"). An environmental impact report
("EIR") should be prepared in connection with the Project,
because the Project will result in significant environmental
impacts that were not specifically analyzed in the prog=am EIR
for the Eastern Dublin General Plan Amendment and Specific Plan
(the "specif ic plan EIR II) .1 fo.t a minimum, the Initial study is
flawed because, although it identifies adverse environmental
impacts of the Project, the explanatory text accompanying the
Environmental Checklist Form in the Initial study contains an
inadequate explanation and description of those potential adverse
impacts and contains no substantial evidence that those adverse
impacts are reduced to a point where clearly no significant
effect on the environment would occur. Moreover, the city's
files contain no record that revisions in the Project plans, or
1 The documents cornprlslng the Specific Plan EIR are
specifically identified 'in the Initial study.
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proposals were made by, or agreed to by, the Project applicant,
Homart community Centers (llHomart"), before the proposed Negative
Declaration was released for public review, which revisions would
avoid the effects or mitigate the effects of the Project to a
point where clearly no significant effect on the environment
would occur. Thus, even absent an EIR, there is no substantial
evidence-in light of the whole record before the city that the
Project may not have a significant effect on the environment.2
In addition to these deficiencies, the Project is also
inconsistent with the goals and policies, and corresponding
implementation measures, of the specific Plan. Because the
California Planning and Zoning Law requires that, in order to
approve the Project rezoning (and other Project approvals), the
rezoning (and those approvals) must be consistent with the
specific Plan, the city cannot approve the rezoning until these
inconsistencies are remedied.
2 We note also that, to the extent the Negative Declaration
and the city's action on the Project 'rezoning (and other subsequent
project approvals) relies on the specific Plan EIR, the city's
Notice of the public hearing on the rezoning application for the
project was required to include a statement that this activity is
within the scope of the program approved earlier and that the
Specific Plan EIR adequately describes the activity for purposes of
CEQA (CEQA Guidelines 515168(e)). The city's notices of public
hearing do not contain this required statement and, therefore, fail
adequately to apprise the public of the basis upon which the city
has concluded that the Project will result in no adverse
environmental impacts. .
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II. LEGAL REQUIREMENTS FOR DETERMINING REQUIRED ENVIRONMENTAL
REVIEW AND SPECIFIC PLAN CONSISTENCY
A. Purpose, Intent and Application of CEOA
1. Purpose and Intent
CEQA was adopted to ensure that public agency decisionmakers
document and consider the environmental implications of their
actions. See, Pub. Res. Code ~~ 21000, 21001. Since its
enactment in 1970, california courts have required that CEQA be
interpreted in such a manner lias to afford the fullest possible
protection of the environment within the reasonable scope of the
statutory language." Friends of Mammoth v. Board of Suoervisors,
8 Cal.3d 247, 259 (1972) i ~, also, citizens of Goleta Valley v.
Board of Supervisors, 52 Cal.3d 553, 563-564 (1990) and Laurel
Heiahts Improvement Association v. Recents of the Universitv of
california, 47 Cal.3d 376, 390 (1988). The purpose of CEQA, and
the environmental review process which it prescribes, is to
ensure that the public and decisionmakers are fully informed with
respect to the environmental effects of their actions. see,
~, Laurel Heiahts, supra, 47 Cal.3d at 390-392.
2. Apolication
CEQA applies to "discretionary projects proposed to be
carried out or approved by public agencies....1I Pub. Res. Code
S 21080 (a). "Project" means the "whole of an action" which has
the potential "for resulting in a physical change in the
environment, directly or ultimately,..." and includes the
enactment and amendment of zoning ordinances. CEQA Guidelines
S 15378(a) (1) i ~, Stand Tallon princioles v. Shasta Union Hioh
School District, 235 Cai. App. 3d 772, 781 (1991). "Approval" is
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not specifically defined in CEQA, but the CEQA Guidelines
(~ 15352(a) and (b)) provide that "approval" encompasses:
(a) .. .the decision by a public agency which commits the
agency to a definite course of action in regard to a project
intended to be carried out by a person.
(b) with private projects, approval occurs upon the earliest
commitment to issue or the issuance by the public agency of
a discretionary contract, ..., lease, permit, license,
certificate, or other entitlement for use of the project.
See, Stand Tallon princinles v. Shasta Union Hiqh School
District, suora, 235 Cal.App.3d 772, 781.
B. Necessitv for Additional Environmental Review
1. Proper stage of Planning Process to Conduct
Environmental Review; Role of Initial studv
Environmental review must be conducted:
as early as feasible in the planning process to enable
environmental considerations to influence project program
and design and yet late enough to provide meaningful
information for environmental assessment. (CEQA Guidelines
~ 15004 (b) .)
This requirement has been interpreted to mean that CEQA
environmental review should take place at a meaningful point in
the planning process, where enough information is known
concerning environmental impacts, but where there is enough
flexibility remaining to address the issues. Mount Sutro Defense
Committee v. Reqents of the University of California, 77
Cal.App.3d 20, 34 (1978).
The initial study is the starting point of environmental
review under CEQA (CEQA Guidelines 515063; Sundstrom v. Countv of
Mendocino, 202 Cal.App.3d 296,304-305 (1988)). As soon as a
local agency determines that an initial study is necessary, it
must also consult with any responsible agencies and trustee
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agencies regarding those agencies' recommendations as to whether
an ErR or negative declaration should be prepared (Pub. Res. Code
521080.3(a); CEQA Guidelines 515063(g); Sundstrom, supra, 202
Cal.App.3d at 305). Since an important purpose of the initial
study is to document the factual basis for finding that a project
will not have a significant effect on the environment and that a
negative "declaration may be utilized (CEQA Guidelines
515063(c) (5)), California courts have consistently held that the
ini tial study "must '.' disclose the data or evidence upon which
the person(s) conducting the study relied. 11 citizens Association
For Sensible Development of BishoP Area v. County of Invo, 172
Cal.App.3d 151, 171 (1985); Sundstrom, supra, 202 Cal.App.3d at
305-308. In addition, while an initial study may utilize a
checklist to determine the environmental effects of a project,
the initial study must contain, at the least, a brief explanation
to indicate that there is "sot1e evidence to support the entries. II
liThe brief explanation may be either through a narrative or a
reference to another information source [which] should include,
where appropriate, a citation to the page or pages where the
information is found. 11 (CEQA Guidelines 515063 (d) (3).) "Here
conclusions simply provide no vehicle for judicial revie'N'. 11
(citizens Association For sensible Development of Bishop Area,
supra, 172 Cal.App.3d at 171.)
Finally, in connection with an initial study (and mitigation
measures specified in an initial study and incorporated in a
mitigated negative declaration or EIR), neither the required
discussion and disclosure of data or evidence nor mitigation
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measures may entail the performance of a future study to
determine the scope of adverse impacts or the content of
appropriate mitigation measures to reduce those adverse impacts
to a level of insignificance.
By deferring environmental assessment to a future date, the
conditions [of approval for the project] run counter to that
, policy of CEQA which requires environmental review at the
earliest feasible stage in the planning process.
,[citations]... A study conducted after approval of a
project will inevitably have a diminished influence on
decision-making. Even if the study is subject to
administrative approval, it is analogous to the sort of post
_.hoc rationalization of agency actions that has been
repeatedly condemned in decisions construing CEQA.
sundstrom v. County of Mendocino, 202 Cal.App.3d 296, 307
J1988) [citations omitted].
project. II CEQA Guidelines ~ 15168 (a) i see, also, city
Environmental Guidelines ~2.4. Subsequent activities in a
program must be reviewed against the program EIR to determine
what additional environmental review, if any, is required. CEQA
Guidelines ~ 15168(C). At that point, an initial study is
prepared to determine whether to prepare a negative declaration
or anEIR. CEQA Guidelines S15168(c) (4),(d). At a minimum, the
lead agency must determine if the later activity would have
eff,ects that were not examined in the program EIR, and must
incorporate feasible mitigation measures and alternatives
developed in the program EIR into subsequent actions in the
program. CEQA Guidelines SS15162, 15168(c) (1), (2),(3).
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An ErR is required to be prepared where there is substantial
evidence In the record supporting a fair argument that a project
may have a significant effect on the environment. Pub. Res. Code
5 21082.2(a); CEQA Guidelines ~ 15064(a) (1); Quail Botanical
Gardens Foundation. Inc. v citv of Encinitas, 29 Cal.App.4th
1597, 1602 (1994).3 A program EIR may be used in connection
with later parts of the program to determine whether the later
activity may have significant environmental effects. CEQA
Guidelines ~ 15168(d) (1). It also may be used to focus an ErR
determined to be required on the later activity to permit
discussion of only those new effects not previously considered.
CEQA Guidelines ~ 15168(d) (3). An EIR prepared for the later
activity must include an analysis of cumulative impacts resulting
from the later activity if those impacts are significant (CEQA
Guidelines ~ 15130(a)), and, even if not significant, the EIR
should explain upon what basis the conclusion that they are not
significant was made (citizens to Preserve the Diai v. County of
Ventura, 176 Cal.App.3d 421, 432 (1985)). In order to utilize
the program EIR in connection with the later activity, any public
3 Under section 1.2 of the city Environmental Guidelines,
an EIR is required to be prepared, in addition to circumstances
where an EIR may be required by state. -statute, .when "the city
determines that there is substantial 'evidence supporting a fair
argument that the project may have a significant effect on the
environment and which involve discretionary governmental
action,.. . Determination of significant effect shall be made as
provided in 5 15064 of the state CEQA Guidelines....In marginal
cases where it is not clear whether there is substantial evidence
that a project may have a significant effect on the environment,
an EIR shall be prepared if there is serious public controversy
over the environmental effects of a project. Controversy not
related to an environmental issue does not require an EI?.II see,
also, city Environmental Guidelines, sections 1.7(f) and 3.1(b).
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....--. .M "_'___'_
.,
notice required for the agency to carry out or approve the later
activity must include a statement that the activity is within the
scope of the earlier approved program and that the program EIR
adequately describes the later activity for CEQA purposes. CEQA
Guidelines 5 15168(e).
A IImitigated negative declarationll may be adopted by a lead
agency where an initial study identifies potentially significant
environmental effects, but only if revisions to the project have
been made and agreed to by the applicant prior to release of the
negative declaration for public review that would avoid or
mitigate the effects to a point IIwhere clearly no significant
effect on the environment would occur,...and there is no
substantial evidence in light of the whole record...that the
project, as revised, may have a significant effect on the
environment." Pub. Res. Code ~5 21064.5.4 and 21080(c) (2);
Sundstrom, suora, 202 Ca1.App.3d at 306-307. The law does not
allow revision of project plans after final adoption of a
negative declaration to incorporate needed mitigation measures
identified as necessary in or developed through post-project
approval studies. Sundstrom, sUDra, 202 Cal.App.3d at 306-307.
Under section 2.6 of the City Environmental Guidelines, where an
initial study identifies significant environmental impacts, and
4 See, also, section 1.7 of the city Environmental
Guidelines, which provides that a negative declaration shall be
prepared where the initial study for a project shows that there
is no substantial evidence of a significant environmental effect
or where revisions to the project would avoid the significant
environmental effects or mitigate these effects to a point where
IIclearly no significant effects would occur and there is no
substantial evidence that the project as revised may have a
significant effect on the environment.1I
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CASS!DY\HCMNEGOE.2\12-22-~'
project modifications are made to lessen the environmental
impacts so that a negative declaration may be prepared in lieu of
an EIR, the city must prepare a revised Initial study which
reflects changes that have been made to the project to reduce the
impacts to less than significant.5
To summarize, when reviewing a later project under a program
EIR, the"lead agency (here, the city) must either decide to
prep9re a negative declaration, or if not, to demonstrate with
substantial evidence in the record that a fair argument cannot be
made that the project may have significant environmental effects.
C. Definina "Prolect" for Purposes of Analvsis
An initial study must contain, among other items, a
description of the project, including the project's location.
state CEQA Guidelines 5 15063 (d) (1). Appendix D--part I (Initial
study-Environmental Infor~ation Form) to the city Environmental
Guidelines requires a project description that includes "site
area, uses, size and number of buildings, parking, number of
dwelling units, scheduling, and any other information necessary
or helpful to understand project. II 1m initial study also must
contain information identifying the environmental effects of the
project, by use of a matrix or checklist, and a discussion of
suggested ways to mitigate the significant effects. CEQA
Guidelines 5 15063(d). The initial study form that has been
developed with the checklists is not sufficient in itself to
5 Under the state CEQA Guidelines, an initial study must
identify environmental effects that may result from the project,
and discuss ways to mit~gate those identified significant
effects. 5 15063 (d) (3) and (4).
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CASSIOY\HCMN~GOE.2\12-2Z.9'
satisfy CEQA: There also must be a corresponding disclosure and
discussion of the evidence and data relied upon to support the
conclusions reached. citizens Association for Sensible
Development of Bishop Area v. county of lnyol 172 cal.App.3d 151
(1985). Where a lead agency relies on an earlier environmental
document, the initial study should at least summarize, with
supporting citations, the relevant conclusions of the earlier
document so that it can be determined whether such reliance is
appropriate. Emminoton v. Solano Countv RedeveloDment Aqencvl
195 Cal.App.3d 491, 501-503 (1987). For purposes of a project
description, an lIaccurate, st:able and finite project descriptionll
is essential to an informative and legally sufficient
environmental review under CEQA. countv of lnyo v. city of Los
Anaelesl 71 Cal.App.3d 185, 192-193 (1977).
A IIproj ect II is def ined by the State CEQA Guidelines to
include lithe whole of an actionll (as discussed above) I and
applies to the overall activity (and not just the particular land
use approval(s)), even when a number of discretionary approvals
may be required. 5 15378. A project may not be "piecemealedll
for environmental review purposes. citv of Carmel-Bv-the-Sea v.
Board of Supervisors I 183 Cal.App.3d 2291 241-243 (1986) (ElR
should address impacts associated not only with a proposed
rezoning, but also the effects of development allowed under the
rezoning). On this basisl the court I in citizens Assn. for
Sensible Development of BishoD Area v. County of lnyo, 172
Cal.App.3d 1511 167 (1985)1 rejected the County's use or a
negative declaration for a general plan amendment and rezoning
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CASSIDY\HC~NESOE.2\12-22.;J
necessary to carry out a shopping center project, despite the
County's argument that it would be "premature" to prepare an EIR
before the tentative map for the project was before the county.
Such an approach divided the project into two parts (i.e.,
piecemealed the project) in violation of CEQA.
D. Leqal Requirements for specific Plan Consistency
It IS settled California law that zoning ordinances must be
consistent with any applicable specific plan (Gov. Code ~ 65455).
In addition, development agreements, tentative maps and parcel
maps must also be consistent with any applicable specific plan
(Id.; Gov. Code 5 65867.5). For purposes of these consistency
requirements, the same test which applies to consistency of
zoning with general plans is the minimum applicable standard:
that the various land uses authorized by the rezoning ordinance
are compatible with the objectives, policies, general land uses,
and programs specified in the specific plan. (See, Gov. Code
5 65860(a) (ii); ~, Lesher communications, Inc. v. citv of
Walnut Creek, Cal.3d 531 (1990).)
III. INADEQUACY OF ENVIRONHENTAL REVIEW
The comments in this section III are based upon the legal
requirements for environmental review outlined above. In
addition, the comments contained in Section IV pelow relating to
the Project's inconsistency with-the Specific Plan are intended
to serve as comments on both the Negative Declaration and the
rezoning application for the project.
In this connection, we note preliminarily two major defects
in the Negative Declaration under the requirements of CEQA. As
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CASS[OY\HCMNESOE.2\12.22-9~
,
':r;
lJ.
(--':
!7 '
noted above, if a lead agency determines that a proposed project
will not have a significant effect on the environment, the lead
agency can adopt a negative declaration. The negative
declaration must be based upon an initial study, which identifies
potentially significant effects on the environment and specifies
revisions in project plans or proposals made by, or agreed to by,
the applicant before the proposed negative declaration is
released for public review, which would avoid the effects or
mitigate the effects to a point where clearly no significant
effect on the environment would occur. There must also be no
substantial evidence in light of the whole record before the lead
agency that the project, as revised, may have a significant
effect on the environment. The Negative Declaration is
accompanied by a document entitled, "Homart Project Matrixll and
dated November 9, 1994 (the "Matrixll), which not only discusses
various aspects of the Project, adverse impacts and mitigation
measures, but has information not contained or discussed in the
Initial study with respect to both project adverse impacts and
mitigation measures. There is no correlation between the two
documents, and often inconsistencies between them. Obviously,
for purposes of the informational function to be performed by
CEQA, this approach is inadequate and not in co~pliance with the
requirements of CEQA discussed above.6
6 Based on our assumption that the city intended that the
Matrix form part of the environmental review under CEQA, we have,
in this Memorandum, commented where applicable upon the
inadequacies of the analysis and mitigation measures specified in
the Matrix. This does not, however, obviate the city's failure
to comply with the requirements of CEQA with respect to the
Initial study. 1
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C~SSIOY\HOMNEGOE-2\12.22-,.
In addition to this deficiency, we understand that the city
intends to rely on the Negative Declaration with respect to all
further approvals necessary to carry out the Project, with no
additional environmental review. This includes Site Development
Review, that will take place entirely at the Staff level without
public presentation to either the Planning commission or city
council,.which means that the most critical issues with respect
to the Project will never be publicly considered. Since this is
the case, then the impetus for thoroughgoing environmental review
at this stage of the Project is more compelling. Since the
Project rezoning will be the first step which commits the city to
implementation of the Project, and in light of this intention of
the city, it is critical that all adverse environmental impacts
of the Project are identified at this stage in sufficient detail
adequately to apprise the public and decisionmakers of those
adverse effects, and the manner in which proposed mitigation
measures will in fact "clearlyll avoid the effects or mitigate the
effects of the Project to a point where clearly no significant
effect on the environment would occur (Pub. Res. Code
5 21080(c)(2)).
We turn now to the specific comments on the Negative
Declaration in this Section III, followed by comments on the
Project's inconsistency with the Specific Plan in Section IV
below.
A. A Decision to Rely on the Specific Plan ErR Would
be Flawed.
The city's determination that the Specific Plan EIR
adequately analyzed the~irnpacts of the Project and that a Project
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C~SSlDY\HOMNEGOE.2\12-22-9"
specific EIR is not necessary is erroneous. The city recognized
in the Specific Plan EIR that site-specific development proposals
may require project EIRs to assess project-specific environmental
impacts (Draft specific Plan EIR, p.1-2), and that the program
EIR approach "reduces, but does not necessarily eliminate, the
need for future environmental analysis." (Draft Specific Plan
EIR, p.1-6).
The Specific Plan EIR analyzed impacts resulting from
overall development of Eastern Dublin under the Specific Plan,
but it did not, nor could it, analyze specific land uses,
densities, building siting and land coverage, and the specific
infrastructure improvements necessary, for each individual phase
of development under the specific Plan represented by individual
projects. As recognized by the San Mateo Superior Court in its
March 10, 1994, Hemorandum of Decision (the "Decision") in the
case of Butler v. citv of Dublin (Case No. 385533), a copy of
which is attached as Exhibit A, a program EIR for long range
planning and zoning purposes is "necessarily general" (Decision,
p.7, lines 19-28, citing villaae Laauna of Laquna Beach v. Board
of Supervisors of Oranae County, 134 Cal.App.3d 1022 (1982)).
The Superior Court noted that, liThe overall Dublin Plan requires
that as each step project or development comes pefore the city, a
new EIR will have to be prepared." [citations omitted] (Decision,
p.17, lines 3-6).
The Negative Declaration evidences precisely this point made
by the Superior court in the Butler proceeding. The Negative
Declaration generally contains no greater level of analysis of
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C~SSrDY\HCMNSGDE.2\12~22.9~
the impacts of the Project than that generalized level of
analysis of the program represented by the Specific Plan and
analyzed in the Specific Plan EIR. In addition, studies called
for in the Specific Plan EIR and the Specific Plan prior to
development of Eastern Dublin in order to ascertain the full
scope of environmental impacts and appropriate mitigation
measures-to avoid those impacts are simply carried forward in the
Negative Declaration. These "mere conclusions" are inappropriate
and inadequate and evidence the compelling need to go beyond the
program level of analysis contained in the Specific Plan EIR in
order to meet the requirements of CEQA and impose appropriate
mitigation measures on the Project to avoid or mitigate the
effects of the Project to a point where clearly no significant
effect on the environment would occur.7 For these reasons, and
for the reasons discussed in this section III, an ErR should be
prepared for the project.8
7 In addition to these deficiencies, we have found no
evidence in the Initial Study, or otherwise, that the city
consulted with other agencies regarding the recommendations of
those agencies as to whether an EIR or negative declaration
should be prepared.
8 Of course, not only should an EIR be prepared, but if it
identifies unmitigated adverse impacts (or the city determines
not to adopt feasible mitigation measures), the city cannot
approve the Project absent "overriding considerations" findings.
(Pub. Res. Code ~ 21081; CEQA Guidellnes ~S15091, 15092, 15093.)
We also question whether the City can make the determination,
other than the generalized discussion contained in the Specific
Plan EIR, that this Project is within the scope of the project
covered by the Specific Plan EIR. (See, CEQA Guidelines
~ 15l68(c).) It is, presumably, for this reason that the Court
in Butler noted that the Specific Plan EIR was "necessarily
general" (Decision, p.7, line 27), and that the specific Plan
would require "that as each step project or development comes
before the city, a new EIR will have to be prepared." (Decision,
p.17, lines 4-6.) .
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CA5SI0Y\HCMNESOE.2\12.22.i:
B. A Mitigated Negative Declaration is not the
Legally Mandated Vehicle for Environmental
Review of the Proiect.
while the city has elected to prepare, based upon the
Initial study for the Project, an Amended Negative Declara~ion,
that determination does not comport with law. A negative
declaration (including a mitigated negative declaration) may only
be adopted when revisions to the project have been incorporated
into and agreed to by the applicant prior to the release of the
negative declaration for public review that would avoid or reduce
the significant environmental impacts to a point where clearly no
significant effect on the environment would occur and where there
is no substantial evidence in light of the whole record that the
project, as revised, would not have a significant environmental
effect. (Pub. Res. Code 55 21064.5, 21080(C) (2); Sundstrom,
supra, 202 Cal.App.3d at 306-307.)9
In the Initial study checklist for the Project, the city has
checked "No" for every category of potentially significant
environmental effects, even though the narrative discussion of
each category describes adve~se impacts which would be caused by
the Project. That narrative discussion then generally concludes
that specific Plan mitigation measureS and corresponding
condi tions of approval will I1mi tigate any impac.1:.s in this topic
area to a level of insignificance. II The legally mandated
9 of course, if there is a fair argument based on
substantial evidence in light of the whole record that a project
may have a significant effect on the environment, an EIR must be
prepared. Pub. Res. Code ~ 21080(d)i No oil, Inc. v. Citvof
Los Anqeles, 13 Cal.3d 68, 75 (1974). As detailed in this
Memorandum, such a fair;argument exists in addition to.the other
legal bases upon which an EIR should be prepared for the Project.
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CASSIDY\HOMNEGDE.2\12.22~9~
analysis requires that, if any aspect of the Project may have a
significant adverse effect, the checklist item be answered "yes"
or "maybe", with a discussion in the Initial study in reasonable
detail identifying those potentially significant environmental
effects, and a discussion regarding whether and how these effects
are capable of mitigation. If effective mitigation or project
revisions are availabler then the City, in order to fulfill the
CEQA mandated public disclosure requirementr must discuss how and
in what manner the measures and revisions will reduce the impacts
so as to provide adequate information to the public and the
decisionmakers. This discussion (including the effects of
mitigation) must disclose the data or evidence upon which the
persons conducting the study relied.10 Mere conclusions
provide no vehicle for adequate environmental review (much less
judicial review). citizens ~ssociation for Sensible Develooment
of Bishop Area, sunra, 172 Cal.App.3d at 171; sundstromr supra;
~, CEQA Guidelines 515063(d) (3).
These requirements have not been followed by the city. Nor
is there any indication in the Negative Declaration (or in the
city files) that the applicant has either revised the Project to
incorporate, or agreed to, any of the mitigation measures
identified in either the Negative Declaration of the Matrix. The
city also has-failed to follow its own procedures set forth in
10 Indeed, the CEQA Guidelines now mandate not onlv
compliance with these requirements, but alsor where appropriater
"a citation to the page or pages where the information is found."
(CEQA Guidelines ~15063(d).) The Negative Declaration contains
little, if any, such citatioDs to the extent it relies on data or
evidence outside of the 'Initial Study narrative.
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CASS1DY\HCMNEGDE.2\12-22-9'
Section 2.6 of the city Environmental Guidelines: preparation of
a revised Initial study which reflects changes to the Project
that reduce the impacts to less than significant. The City's
proposal of studies to identify further Project revisions and
mitigation after adoption of the final Negative Declaration also
violates the Sundstrom rule.
_ c.
The Project Description Has Not Been Sufficiently
Developed or Described to Afford MeaningfUl
Environmental Review.
Even if a negative declaration would otherwise be
appropriate, the Project description is inadequate, precluding
meaningful review and analysis of project impacts. It is not
clear whether the Project is proposed to be implemented in two
phases (with development of the "east parcel" during a second
phase; see, Matrix, p. 14, Mitigation Measure 03.04/29.0). If
there are two phases, both comprise the Project and both should
be discussed and analyzed now, including the timing of the
development of each phase, its relationShip to other development
under the Specific Plan (including cumulative impacts), the
timing of the phasing in relationShip to identified adverse
impacts and implementation of mitigation measures.
Even though the city's Environmental Information Form calls
for a description that includes uses, size and number of
buildings, parking and other information lInecessary" to
understand the Project, this form has been filled out in at best
a general manner: The Project is a "request to rezone 75+/-
acres from Planned Development-Business Park (low coverage) to a
standard Planned Developmentll and will include a "Site
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C~SSIDY\HCMNEGOE.2\12.22~9~
Development Review and Tentative Parcel Map"; the Planned
Development "would allow for an 800,000 square foot commercial
center which may include retail shops, offices, movie theatres
and restaurants amonq other uses." [emphasis added]. The Project
description in the text of the Negative Declaration is even more
general. A review of the Rezoning Application indicates that the
applican~ may have a more specific proposal, as the application
sets forth zoning standards (~, parking and loading
requirements) which are to apply to the Project that presumably
bear some relationship to what is contemplated for the Project
site. The Conceptual site Plan attached to the Negative
Declaration shows the location of buildings and parking areas on
the Project site. Either this is so conceptual in nature that
the city did not want to utilize these standards and plans on
which to base its environmental analysis (because the text of the
Negative Declaration contains no discussion of these standards or
the Conceptual Site Plan or any other Project specific details),
or this plan should be incorporated into the Project description,
with the various uses and their respective square footage and
locations identified.11
11 To further highlight the problem created by these
inadequacies in the Project description even though required by
the city's own policies, the CEQA Guidelines require that the
city must not only incorporate feasible mitigation measures, but
also alternatives developed in the specific Plan EIR, into
subsequent actions with respect to the Project (CEQA Guidelines
S15168(c) (2)). Not only is the Negative Declaration devoid of
any discussion of feasible alternatives, but any meaningful
analysis of those alternatives is precluded by the inadequate
Project description contained in the Negative Declaration.
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CASSIDY\HC~NEGOE.2\12-22.S4
Have the DSRSD plans for serving the Project with potable
water and wastewater services been completed? If not, how can
conclusions be reached in the Negative Declaration regarding
servicing the Project and any impacts associated with such
service? The Negative Declaration should specify which
mitigation measures DSRSD will implement to ensure that no
signific~nt environmental effects occur as a result of the
Project.
In an October 19, 1994, letter to the city Planning.
Department from Pacific Gas & Electric (PG&E), the following
concerns were expressed by PG&E regarding the Project: (i) lack
of access to the gas mainj (ii) close proximity of buildings to
major gas and electric facilities parallel to 1-580j (iii) lack
of right-of-way and property line information on the Project
Conceptual site Planj and (iv) proposed landscaping near the
major gas and electric facilities. These concerns must be
addressed in the Negative Declaration, with a corresponding
discussion of appropriate agreed-to, known mitigation measures.
The statement that the Specific Plan EIR mitigation measures
relating to solid waste, power and natural gas, water, sewer,
septic tanks and storm water drainage were developed to ensure
environmentally sensitive provision of these services does not
address the CEQA required analysis of the impacts in each of
these areas. CEQA requires full and complete disclosure of
impacts, not environmentally sensitive provision of services, and
identification of appropriate mitigation measures to avoid or
"
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CASSJDY\HCMNEGDE.2\12.22-9~
mitigate the effects to a point where clearly no significant
effect on the environment would occur.
8. Human Health
Demolition of a portion of the Madigan Building has not been
described, but should be describedJ as part of the Project. This
demolition is necessary to construct the commercial centerJ and
has pot~ntially significant environmental effects due to the
asbestos contained in the building. This building, and its
demolition impacts, do not appear to have been analyzed in the
Specific Plan EIR, so these impacts must be analyzed now.
with respect to underground storage tanks that have been
removed, the Negative Declaration should disclose any information
known at this time regarding evidence (or lack thereof) of soil
or groundwater contamination, even though the monitoring period
has not been completed. In other words, the Negative Declaration
must at least disclose and analyze information known regarding
potential contamination, even though the full extent may not yet
have been ascertained.
IV. PROJECT INCONSISTENCY ~FTH SPECIFIC PlJl.N
The Project is inconsistent with, and does not fully
address, the following goals/policies and corresponding
implementation measures of the Specific Plan.14
We have
'-
14 We note that the Decision in Butler concluded that "in
the context of the EIR, and to the extent pertinent to the SP
[Specific Plan) and the GPA [General Plan Amendment to implement
the Specific Plan), the use of 'should' is synonymous with
'shall' and is manda'tory and I encourage I is the equivalent of
I require I . II (Oecis ion, p. 18, lines 18-21.) The Court
reiterated this holding with respect to the Specific Plan by
noting, "All of the analysis hereinabove set out with regard to
I shall', I should r, 'require I, and 'encourage I, is applicable to
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C~SSI~Y\HOMN<GCE.2\12.2~.9.
focused only on inconsistencies in areas of greatest concern to
our client, although we believe that the Project also is
inconsistent with other goals, policies and action programs of
the Specific Plan that are not specifically identified in this
Memorandum.
A. Traffic and circulation (Specific Plan, Chapter 5.0)
1. Goal (Specific Plan, p. 49): To provide a
circulation system for Eastern Dublin that is convenient and
efficient, and encourages the use of alternate modes of
transportation.
2. Goal (Specific Plan, p. 53): To establish a
vehicle circulation system which provides sufficient capacity for
projected traffic and allows convenient access to land uses,
while maintaining a neighborhood scale to the residential street
system.
3. Action Proaram 5A (specific Plan, pp. 54-55)
requires that detailed development plans be submitted to the city
all financing questions under the SP." (Decision, p. 21, lines
4-6.) In this connection, the Court also determined that,
various phasing and implementation aspects of
the overall program/project therefor
constitute prerequisites which must be met
before any specific development plan will be
approved and before commencement of any
physical activities to carry-out any such
development plan. (Decision, p.1S, lines 21-
25. )
The Butler decision governs the cityJs actions with respect to
the project. As such, the analysis set forth in this Hemorandum
is premised in part on the clear requirement that the mandatory
policies of the Specific Plan must be in place before the city
may commit to the project through approval of Homart1s'
application for rezoning.
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CASSIDY\HCMNEGDE.2\12-22-9~
in connection with a proposed development that include certain
specified standards identified on pages 54-55 of the Specific
Plan for major arterial streets, arterial streets, major
collector streets, collector streets, local residential streets
and industrial roads. The Project plans do not address these
standards. The Matrix simply indicates that this will be part of
the site. Development Review (Matrix, p. 2). For example, one
identified standard requires that full access to major arterial
streets shall occur only at signalized intersections. This
information should be provided before the city acts on any
Project application.
4. Goal (Specific Plan, 55): To maximize
opportunities for travel by public transit. The Project
application does not specify the ways in which opportunities for
travel by public transit will be maximized. Specifically, policv
5-10 (provide transit service within one quarter mile of 95% of
the population in the Specific Plan area in accordance with LAVTA
service standards; Specific Plan, p. 55)), and Policv 5-11
(provide transit service, at a minimum frequency of 1 bus every
30 minutes during peak hours, to 90% of employment centers with
100 or more employees in accordance with LAVTA service standards;
Specific Plan, p. 55)), do not appear to have been addressed in
~~-
the Project applications and/or mitigation measures. Further,
Policv 5-13 (Specific Plan, p. 55) calls for establishing design
guidelines for residential and commercial development so there
are clear and safe pedestrian paths between building entrances
and transit service stops. In order to implement these policies,
'.f'
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CASS!JY\HCMNE~~E.2\12-22-9~
Action Proqram 5B (Specific Plan, p. 56) requires review and
approval by the City, as part of conditions of Project approvals,
of the following: public transit route and phasing plan, to be
prepared in consultation with LAVTA; bus turnouts and transit
shelters, in consultation with LAVTA; and pedestrian paths
between transit stops and building entrances. Have discussions
with LAVT,A occurred? Will bus shelters and pedestrian paths be
provided in conjunction with LAVTA? These features appear only
as a "condition for developers to provide" (Matrix, p. 2). What
does this mean, and how does it comport with the Specific Plan
requirement?
5. Goal (Specific Plan, p. 5S): To minimize the
transportation-related impacts of development in Eastern Dublin.
In addition to participation in Transportation Systems Management
programs (Policy 5-21 and Action Program 5G), Policy 5-22
(Specific Plan, p. 58) requires the establishment of park-and-
ride lots, and Action Proaram 5H (Specific Plan, p. 58) requires
the City to work with developers at the freeway interchanges to
provide these lots between 1-580 and Dublin Boulevard on the west
sides of Hacienda Drive, Tassajara Road and Fallon Road. The
lots are to provide a minimum of 100 parking spaces and include
lighting and landscaping. The Project is located at a freeway
>~
interchange. Nevertheless, it is not specified whether a park-
and-ride lot is required in connection with the Project, or
whether the Project will be required to fund a portion of a
planned park-and-ride lot. The Matrix (p. 1) merely states that
the park-and-ride lot should be located on the west side of
:.
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CASSIDY\HCMNEGDE.2\12-22-94
Hacienda. The compliance (or lack thereof) with this Action
Program should be analyzed and disclosed.
B. Community services and Facilities (Specific Plan,
Chapter 8.0)
1. Goal relating to fire protection (Specific Plan,
p. 125): To ensure that fire protection services are consistent
with sta.ndards maintained throughout the city. policv 8-5
(Specific Plan, p. 125) calls for timing the construction of two
new stations that will be needed to service new demand. The
first station is to be sited and construction completed prior to
completion of the initial development. Action Proqram 8G
(Specific Plan, p. 125) requires that the westernmost site (the
first fire station) "must be assured prior to the approval of the
first development plans in Eastern Dublin. II There is no
indication that this has been accomplished (even for the
temporary station currently contemplated), which is a requirement
prior to approval of any Project applications.
2. Goal relating to solid waste (Specific Plan, p.
126): To reduce the total flow of waste to landfill by promoting
waste reduction, source separation, curbside collection, and
other recycling alternatives to landfilling. Policy 8-7
(Specific Plan, p. 126) calls for supporting ACWMA efforts to
......--
develop alternative disposal facilities for organic waste in the
Tri-Valley area. Action proaram 8K (Specific Plan, p. 126) calls
for preparation of a solid waste management plan for Eastern
Dublin. The Matrix (p. 16) indicates that an update to the Sw11P
for Eastern Dublin is needed, but that the Project will not
'f'
-38-
CAssrDY\HC~NEGQE.2\12-22-9~
exceed thresholds of current SRRE. Upon what analysis is this
conclusion reached? How does it support a decision not to
prepare the update for Eastern Dublin?
C. Sewer, Water and storm Drainaqe (Specific Plan, Chapter
9.0)
1. Goal relating to water (Specific Plan, p. 129): To
provide ~n adequate water system for the planning area. Policy
9-1 (Specific Plan, p. 130) calls for providing an adequate water
supply system and related improvements and storage facilities for
all new development in the planning area. Policy 9-2 (Specific
Plan, p. 130) calls for coordinating with DSRSD to expand its
service boundaries to encompass the entire Eastern Dublin
Specific Plan area. Action Prooram 9B (Specific Plan, pp. 130-
131) calls for, as a condition of proiect approval in Eastern
Dublin, the construction of a recycled water distribution system,
as well as necessary off-site facilities to support recycled
water use. Has this been accomplished? The "Action Takenll
column of the Matrix (p. 21) merely states that a will-serve
letter will be required.
2. Goal relating to wastewater (Specific Plan, p.
131): To provide adequate wastewater collection, treatment and
disposal. policv 9-4 (Specific Plan, p. 132) calls for
,..
coordinating with DSRSD to expand its service areas to encompass
the entire planning area, and to explore the possible need for a
wastewater storage facility in Eastern Dublin. Action Prooram 9K
(Specific Plan, p. 132) requires development within the planning
area to fund a recycled water distribution system computer model,
-39-
CASSIDY\HCMNEGCE.2\12-22-9~
reflecting the Specific Plan land uses. Has this been
accomplished? How will the system be funded? What facilities
will the Project applicant be required to install (see IIAction
Taken" column, Matrix, p. 19)? The DSRSD indicates that major
potable water, recycled water and wastewater collection
facilities to serve the Project will be designed and constructed
at some point (November 3, 1994, letter to City's Planning
Director, Mr. Laurence Tong). Exactly what facilities will be
needed? Has a funding source or sources been identified to
assure installation of these required facilities?
Action Proaram 9N (Specific Plan, p. 132) requires
project applicants to prepare a detailed wastewater capacity
investigation to supplement the information in the Specific Plan,
which reflects the phased development approach matched against
the allocation of sewer permits. This does not appear to have
been done in connection with the Project application. The
planned land uses at the site must be identified and estimated
wastewater flows to be generated based upon these land uses.
This must be done prior to approval of the Project. It also
appears that this is a prerequisite to DSRSD planning for needed
facilities.
Table 9-2 on page 136 of the Specific, Plan is a matrix
of implementation responsibilities for wastewater service. These
items, as they relate to developer responsibilities, do not
appear to have been accomplished in connection with the Project
application.
-40-
CASS!DY\HCMNEGDE.2\12-22-94
3. Goal relating to storm drainage (Specific Plan,
p. 133): To provide adequate storm drainage facilities for the
planning area. Policy 9-7 (Specific Plan, p. 133) calls for
requlrlng drainage facilities that will minimize any increased
potential for erosion or flooding. The Project application
should include information regarding Project drainage and how
that wirl be accommodated. Action Proqram 9T (specific Plan,
p. 134) requires, prior to develonment approval, that a master
drainage plan must be prepared for each development application.
The plan must include hydraulic studies of entire related
upstream watersheds, phase approaches and system modeling,
documentation of existing conditions, design level analysis of
impacts on existing creek channels, detailed analysis of effects
of development on water quality, detailed drainage design plans
for each phase of the Project, and design features to minimize
run off flows within existing creeks. This has not been
accomplished for the Project and must be prepared prior to
approval of any Project application (Matrix, p. 25, indicates
that the County is preparing the plan).
D. Financina (Specific Plan, Chapter 10.0) (see also
Chapter 11, Implementation)
1. Goals: with respect to financing, the Specific'
Plan's goals (Specific Plan, p. 151) include (i) requiring new
development to pay for the full cost of infrastructure needed to
serve the area and funding the cost of mitigating adverse project
impacts on existing infrastructure and services; and (ii)
developing a financing plan that provides for reimbursements from
-41-
CASS I DY \HC~lNEGDE. 2 \ 12 - 22 - 9~
any other benefiting areas for costs that the Specific Plan area
owners are required to advance (and provide a fair allocation of
costs among land uses) .
The specific policies set forth on page 151 of the Specific
Plan to achieve these goals include, among others, policies
calling for allocation of costs for the infrastructure and public
services improvements on a "benefit receivedll and "fair share
allocation" basis; adoption of an area of benefit ordinance (an
area of benefit ordinance covering bridges and streets has been
adopted by the City); dedication of land for road and other
improvementsj and the issuance of bonds to fund infrastructure
and public services. Specifically, Policy 10-5 calls for
requiring development projects to fund the full cost of
oversizing of facilities that will serve future development as
well as the initial development, subject to future reimbursement
from future development benefiting from the oversizing. Policy
10-8 calls for providing for reimbursements from other benefiting
areas for costs that the Specific Plan area owners are required
to produce.
The financing action program set forth on pages 152 - 153 of
the Specific Plan calls for the City, in connection with
development agreements for individual projects, to spell out the
precise financial responsibilities of-the developer. Action
Programs also call for adoption of an area of benefit ordinance;
creation of special assessment or Mello-Roos districts; Mello-
Roos Bond Pooling and citywide developer/builder impact fee
-42-
CASSIDY\HCMNEGOE.2\12-22-;J
Demolition of a portion of the Madigan Building, which
constituted part of the old jail facility, is also contemplated
as part of the Project (see, Negative Declaration, p. 18). This
is not described as part of the Project. This demolition should
be included in the Project description, and the impacts of the
demolition and asbestos removal analyzed, with imposition of
appropriate mitigation measures. Potential adverse impacts
associated with this part of the Project might include (but would
not necessarily be limited to) air quality impacts, construction-
related impacts and impacts related to the handling of hazardous
materials.
Not only is the Project inadequately described, the Project
description does not contain a full accounting of the various
land use approvals which are necessary to implement the Project.
These include a Tentative Map, Site Development Review, and a
Development Agreement, which is discussed in the Initial Study
and which is, according to the Initial Study, integral to the
implementation of required mitigation measures and Specific Plan
policies. The Project description contains no detail whatsoever
with respect to the manner in which the Project will be
implemented through these subsequent land use approvals or the
manner in which the Project will be refined and fleshed out
through that process. These flaws also make it impossible to
conduct a meaningful environmental analysis, and the Project has
not been analyzed in connection with these subsequent land use
approval applications. These approvals should be analyzed now as
part of revie,v of the proj ect (to avoid IIpiecemealing" the
-21-
CASSIDY\HCMNEGDE.2\12-22-9.
Project for environmental review purposes in violation of CEQA;
see, ~, Citizens Association, sunra), because the Negative
Declaration is intended to cover all of these Project approvals.
D. The Analysis of Impacts in the Negative Declaration
is Insufficient and is not supported by Substantial
Evidence.
In sum! our overall comments on the Negative Declaration
include the following:
(i) there is little, if any, Project
specific analysis under most of the topic areas, and that
analysis is at best conclusory and superficial, without adequate
disclosure of the data or evidence relied upon; (ii) the
mitigation measures proposed are not tailored to the Project;
(iii) in many instances, the Negative Declaration (or the Matrix)
calls for a study to provide information on adverse impacts and
to develop mitigation measures to respond to those impacts;12
and (iv) there is no discussion or analysis of how the mitigation
measures will actually reduce the Project specific impacts. The
following specific comments are illustrative of the overall
deficiencies of the Negative Declaration. These comments also
show why an EIR should be prepared in connection with the
proj ect. 13
12 While this IIstudyll approach clearly violates the
Sundstrom rule discussed above, at a minimum, tpe City must, in
the Initial study, determine the extent and nature of the adverse
impacts, specify the elements which would be comprised in the
mitigation measures implemented through a study, and describe how
those elements would avoid the effects, or mitigate the effects,
of the Project to a point where clearly no significant effect on
the environment would occur.
13 Even if the City decides to proceed with the Negative
Declaration rather than preparing an EIR, these comments should
be responded to and a revised Negative Declaration should be
prepared and recirculated for public review and comment. See,
-22-
CASSIDY\HCMNEGOE.2\I2-22-;~
1. Water
The environmental analysis of "Water" in the Negative
Declaration should address the specific water demands for the
Project. The mitigation measures identified in the Specific Plan
EIR and included in the Matrix call for certain water supply and
water quality improvements to be made in Zone 7 (~, ~,
.
Measures 3.5/28.0, 3.5/29.0 on p. 21 of Matrix). Have any of
these improvements been made? How does this impact the water
supply available for the Project? If these improvements have not
been made, how and in what manner are their installation and
construction assured?
Even though the Negative Declaration states that DSRSD "has
indicated that they have water to supply the project" (Negative
Declaration, p. 13), the Negative Declaration should discuss the
Project1s demand for water and what impact that demand has on
cumulative water demands for the area. The February 1992 Zone 7
Water Supply Update indicates that the state Water Project (SWP)
supplies 70% of the water used in the Zone 7 Area, and that the
SWP cannot meet current demands. The Negative Declaration
ignores this information and fails to explain what has occurred
since the February 1992 Update that now allows adequate water
supply for the Project.
The Specific Plan EIR (see, Draft EIR at pp. 3.5-20 - 3.5-
21) indicates that the only water service to the planning area is
a Zone 7 water connection to Alameda County that serviced the
Santa Rita Jail/ and that development under the Specific Plan
city Environmental Guidelines 5 2.6.
-23-
CASS:DY\HCMNEGDE.2\12-22-94
will necessitate a water distribution system and storage system
(and if this system is not constructed, the impact will be
significant). The I1Action TakenIJ column on p. 23 of the Matrix,
relating to Mitigation Measure 03.05/34.01 contains the following
statement: "At this time DSRSD states that it does not appear
that new storage facilities will be necessary for this
development." However, DSRSD' s November 3, 1994, comment letter
to the City's Planning Directorl Mr. Laurence Tong, indicates
that DSRSD currently is completely an Engineering Analysis of
interim water distribution and storage alternatives to supply the
Pro j ect (Comment Letter, p. 3, i 6), and DSRSD "will be designing
and constructing major potable water, recycled water, and waste-
water collection facilities to serve the proposed Homart
project. 11 (Comment Letter, p.1.) Clearly, if studies are still
ongoing with respect to the project's water supply and its
adequacy and availability, neither the impacts of the Project nor
agreed-to, known mitigation measures can be developed now.
Rather, this approach violates CEQA and the Sundstrom rule
(since, presumably, these studies will result in "[t]he
requirement that the applicant adopt mitigation measures
recommended in a future study... in direct conflict with the
guidelines implementing CEQA." Sundstrom, 202 Cal.App.3d at
306) .
In sum! the Negative Declaration should address project
water demand (including fire flow capacity), whether there is in
fact adequate water supplies to serve the Project (including
emergency needs), DSRSD's plans to supply water to the. Project,
. f
-24-
CASS J DY \HOr~NEGOE. 2\ 12 -22 -94
whether the Zone 7 connection is sufficient to serve the Project,
and whether new water storage facilities will be required (and,
if so, what are the corresponding impacts), and why it does not
appear at this time that new storage facilities will be
necessary.
The Negative Declaration also states that a Master Drainage
Plan will be prepared that will evaluate any changes in drainage
patterns and flooding lito ensure there are no environmental
impacts in this topic area." Drainage patterns resulting from
the Project (~, building coverage, impervious surfaces such as
parking areas and associated runoff) must be analyzed at this
stage of Project review and approval. In addition! Mitigation
Measure 03.05/07.0 (Matrix, p.18) calls for Project specific
wastewater capacity investigations. To our knowledge, this has
not been completed. The Eastern Dublin Facilities Plan Final
Report, dated December 1993, prepared by DSRSD, addresses
pipeline sizing for wastewater collection, potable water
distribution and recycled water in Eastern Dublin, but it does
not address specific Project demands and impacts. The rationale
and reasoning for the proposed water and sewer facilities for the
Project identified in Figure Three to the Initial study should be
discussed and analyzed and agreed-to, known mitigation measures
specified and incorporated into the Project. Deferring to a yet
to be prepared Master Drainage Plan and yet to be undertaken
wastewater capacity investigations again violates CEQA and
Sundstrom: It fails to evaluate Project impacts at the earliest
feasible time before the City is finally committed to the Project
-25-
CASSIDY\HC~NEGDE.2\12-22-9J
in order fully and adequately to inform the public and
decisionmakers regarding potential adverse impacts and feasible
mitigation measures, and it results in a requirement that Homart
adopt mitigation measures to be identified in a future study in
conflict with CEQA.
In this connection, we note one particularly acute problem
posed by- the proj ect . Development in Eastern Dublin (including
the Project) cannot increase the level of peak flows generated by
the storm water drainage system. The Project site is, from the
standpoint of established drainage patterns and hydrological
principles, the best and most obvious location for a retention
basis for mitigating peak flows from Eastern Dublin, especially
into Pleasanton. Obviously, development of the Project precludes
this option, and yet the Negative Declaration neither identifies
other potential sites to serve this function, nor whether those
other sites would adequately and appropriately mitigate, and what
adverse impacts might be associated with these alternative
locations for such retention facilities. The Negative
Declaration should analyze this issue and alternatives and
determine whether and which of these other sites will be as good,
both functionally and environmentally, as the Project site for
these purposes.
2. Noise
The Negative Declaration concludes that the Project would
result in increased noise levels, but "would not result in the
exposure of people to severe noise levels." How can effective
mitigation be assessed when one of the two noise mitigation
"
-26-
C~SSIDY\H~1NEGOE.2\12-22-9~
,
t
measures (Measure 03.10/07.0, Matrix, p. 37) calls for
establishment of a noise mitigation monitoring fee, but the
ordinance has yet to be prepared? The requirements of the
ordinance need to be in place in order to assess whether the fee
to be paid for the Project, if any, and the uses to which the fee
will be put adequately mitigates the Project noise impacts.
3. Land Use
The Negative Declaration does not discuss land use impacts.
The environmental analysis should include a discussion of the
Project's consistency, or lack thereof, with the City1s General
Plan and the Specific Plan. It is only through this process that
the conclusions in the Negative Declaration could be reached.
Comments on the Project's inconsistency with the Specific Plan
and the implementation requirements are set forth below under
section IV.
4. Risk of Unsets
The mitigation measures imposed to reduce potential impacts
call for additional public services in the form of additional
police and fire personnel, and the acquisition of sites for
construction of new fire stations. Have these services been
added? Have sites been acquired for this purpose? The Specific
Plan requires that the IIwesternmost site [for fire protection]
must be assured prior to the approva1-of the first development
plans in eastern Dublin.1! (Specific Plan, p. 125, Action Program
8G). While these public service mitigation measures were
contemplated for the entire development of the GPA area, the
Negative Declaration should analyze the Project-create~ need for
-27-
CASSIDY\HCMNEGDE.2\12-22-94
additional services and whether those needs can be met by
existing public services.
The Fire Department indicates that a temporary fire station
will be utilized (as we understand it, three options are being
considered) to meet the demands of the Project, and that
financing for the fire station must be in place before January
1995, in_order to meet Homart's schedule for constructing and
opening the Project (Fire Issues Related to the Eastern Dublin
Specific Plan prepared for the Homart Project, 9/13/94 [the "Fire
Issues"]). Provision of a temporary fire station and whether
that temporary station will meet the service demands of the
Project must be analyzed. In addition, the feasibility of a
temporary station in relationship to available financing should
also be addressed to determine if this interim mitigation measure
is feasible.
A wildfire management plan for the East Dublin area is also
required to be prepared (Matrix, p. 12, Measure 03.04/12.0) which
apparently is to be prepared on a project-by-project basis at the
site development review stage (see discussion under "Action
Taken" column in the Matrix). The elements of this plan for the
Project should be identified, and discussed and analyzed, in the
Negative Declaration.
5. TransDortation/circulation
The Negative Declaration does not discuss the
traffic/transportation/circulation impacts that will result from
the Project, nor does it discuss the required Specific Plan
measures to mitigate these impacts in this area (see, Specific
't,.
-28-
CASSIDY\HCMNEGDE.2\12-22-94
Plan inconsistency comments in section III below). If the
Traffic Impact Study prepared for the Project is intended to
address the Project impacts (the Negative Declaration, p. 16,
indicates that the transportation and circulation impacts are
mitigated by the measures incorporated into the Traffic Impact
Analysis prepared for the Project, along with Specific Plan
mitigati?n measures) 1 then the Traffic Study and its conclusions,
along with the agreed-to, known mitigation measures, should be
addressed in detail in the Negative Declaration. The Negative
Declaration should also explain on what basis it is concluded
that the Project will not result in traffic hazards due to the
design of the Project: The design should be described and the way
in which that design would reduce traffic hazards should be
discussed.
Even if the Project alone will not generate significant
traffic impacts, cumulative impacts must be considered. Table
3.3-9, attached to the DKS Associates' December 15, 1992, letter
to the City's Planning Director, Mr. Laurence Tong (which we
understand is part of the Specific Plan EIR) , shows level of
service (LOS) on freeways substantially degraded with cumulative
development, including under the Specific Plan. The Project's
contribution to these effects should be discussed and analyzed in
~~
the Negative Declaration. The Project Traffic Impact study
analyzed operating conditions at key intersections under three
scenarios: existing conditions; background conditions (existing
plus projects with completion dates no later than 1995); and
background plus project conditions. The study did not.adequately
if
-29-
CASSIDY\HCMNEGDE.2\12-22-9~
analyze cumulative traffic impacts, because it did not take into
account foreseeable projects with completion dates beyond 1995,
much less buildout under the Specific Plan. To be legally
adequate, a cumulative impact analysis should analyze a project
over time with other past, present and reasonably foreseeable
future projects (which includes unapproved projects undergoing
environm~ntal review), or based on a summary of projections
contained in the City's General Plan and Specific Plan. Pub.
Res. Code ~21083(b); CEQA Guidelines ~15130; San Franciscans For
Reasonable Growth v. city and Countv of San Francisco, 151
Cal.App.3d 61, 72-74 (1984).
In addition, we understand that the City is in the process
of considering a draft Traffic Impact Development Fee Ordinance.
The Negative Declaration should discuss what fee will be required
for the Project pursuant to that Ordinance (and how the fee is to
be assessed, and whether it will provide sufficient mitigation in
this case) after the Ordinance is adopted. To do otherwise is to
assume the enactment of the Ordinance (which is within the
discretionary purview of the City1s City Council) before that
enactment, a prediction which cannot be made or relied upon for
CEQA purposes. Also, the Negative Declaration should include an
analysis of freeway and other improvements made in other
jurisdictions (such as Pleasanton) that will benefit Eastern
Dublin development, along with an allocation of the fair share of
the cost of such improvements which should be allocated and borne
by Eastern Dublin development! including the Project.
-30-
CASS!DY\HCMNEGDE.2\12-22-9J
Clearly, the Project as a large retail shopping center, will
generate substantial additional vehicular movement, will create
demand for new parking, will impact upon existing transportation
and traffic systems, will alter the present patterns of
circulation and movement of people and goods, and increase
traffic hazards. All of these must be addressed in the
appropriate detail required under CEQA and mitigation measures
proposed which would avoid the effects or mitigate the effects to
a point where clearly no significant effect on the environment
would occur.
6. Public Services
Deferring analysis of Project impacts on public services by
stating that services and improvements necessitated by the
Project will be determined by studies currently being prepared
violates CEQA and Sundstrom. The conclusory statement that, liThe
Santa Rita Commercial Center will require some of the
improvements or service increases that were planned for the
Eastern Dublin Specific Plan," is unsupported by any analysis and
evidence. By definition, the statement itself evidences that
adverse impacts on public services will occur as a result of
development of the Project. A separate analysis of the demand
for increased public services (fire, police, schools, government
services and facilities) created by the Project should be
contained in the Negative Declaration, with a discussion of the
corresponding mitigation measures intended to address each impact
and the manner in which the measure will reduce or eliminate the
identified impact.
-31-
CASSIDY\HCMNEGDE.2\12-22-9~
By way of example, a statement in the "Action Taken" column
on p. 16 of the Matrix under Mitigation Measure 03.04/37.0, says
that the Project will not exceed thresholds of the current Source
Reduction and Recycling Element (SRRE). This statement is part
of the analysis of Project impacts, and belongs in the text of
the Negative Declaration (not in the IIAction Takenll Matrix
column) '. along with the evidence supporting this conclusion. As
another example, as discussed above, the Specific Plan calls for
assurance, prior to aooroval of the first development plans in
Eastern Dublin, of the acquisition of a site for the first of two
needed additional fire stations to accommodate development in the
Specific Plan planning area. Even though the Fire Department has
plans for a temporary station, as far as can be ascertained, this
temporary station is not so assured, even though the Project is
the first development plan in Eastern Dublin.
7. utilities
with respect to supplying the Project with potable water and
wastewater services, the routes shown for DSRSD water and sewer
facilities for the Project on Figure Three to the Initial Study
do not constitute a discussion of the Project demands and impacts
for these services. Nor do the conclusory statements in this
section of the Initial Study that the specific Plan EIR
.;
considered solid waste, power and natural gas, water, sewer,
septic tanks and storm water drainage, and developed mitigation,
suffice for an adequate analysis of Project impacts, much less
agreed-to, known mitigation measures.
n
-32-
CASSIDY\HCNNEGDE.2\12-22-9J
systems. Certain other actions identified are needed to be
implemented by other agencies.
The City cannot approve the rezoning application for
development of the Project without the specific financing
responsibilities being identified and tied to necessary
infrastructure and public services improvements necessitated by
the Project (see, Matrix, p. 39, which indicates that a financing
~
plan is being prepared and that the Development Agreement will
address issues specific to the Project). To do otherwise
directly conflicts with the spirit and actual requirements of the
specific Plan and to rely on a yet to be approved Development
Agreement not only begs the issue and the commitments which
Homart will make in connection with the Project, but also relies
upon a future action of the City, which is not assured or
guaranteed, either with respect to enactment or with respect to
the form and content of the Development Agreement.1S As the
Fire Department aptly pointed out with respect to developer and
building impact fees (Fire Issues, p.2)r those fees do not take
into account whether adequate funds will be available for the
necessary improvements and funding of projects in advance of, and
correlated to, development of Eastern Dublin. Moreover, the
updated Fiscal Analysis set forth in Attachment 1 to the staff
15 We have been advised that a draft Development Agreement
has been prepared but that it is not yet available for public
distribution. While a public hearing on the Development
Agreement has been scheduled before the Planning commission on
January 3 and before the City council on January 9, the financial
and other obligations that presumably will be included in the
Development Agreement should be identified and analyzed in the
Negative Declaration anq considered in conjunction with, and not
after, the rezoning application.
-43-
CASSIDY\HCMNEGCE.2\12-22-94
Report to the Planning commission for its December 19, 1994,
hearing, does not provide the necessary financial information.
In addition to these matters, the Project impacts on the
identified major capital improvements listed in Table 10-1 of the
Specific Plan should be identified. The Area of Benefit
Ordinance addresses only bridges and streets, and does not cover
all "pub~ic improvements" specified in the Specific Plan (see
Specific Plan, p. 153).
Moreover, while the City has preliminary estimates for a
public facilities fee (see Recht Hausrath preliminary study
incorporated in a Memorandum dated November 11, 1994 to Richard
Ambrose from Bob Spencer), these estimates are preliminary and
there is no analysis of the fee as it relates to the project.
Nor is there any analysis of the traffic impact fee currently
under consideration by the City and its relationship to the
Project. Do the proposed fees meet the spirit, intent and
requirements of the Specific Plan?
Finally, the City of Pleasanton's and the North Pleasanton
property owners' contribution toward roadway improvements that
will benefit not only development in Pleasanton but also
development in Eastern Dublin should be recognized .16 These
improvements include construction of the Santa Rita/Tassajara,
Hacienda and HopyardjDougherty interchanges at '1-580 (the
"Pleasanton Improvements"). The Specific Plan emphasizes and
16 See, in this connection, the comments of the City of
Pleasanton contained in its December 16, 1994, letter from Mr.
Randall Lum to Mr. Lee Thompson. We incorporate that letter into
this Memorandum in its ~ntirety as part of the comments set forth
in this Memorandum. .
-44-
CASSIDY\HCMNESDE.2\12-22-94
calls for fair share allocation: this allocation should extend to
the Pleasanton Improvements: requiring assessment of necessary
fees in connection with Eastern Dublin development to fund not
only the Specific Plan contemplated improvements but a portion of
the Pleasanton Improvements, with reimbursement to the city of
PleasantonjNorth Pleasanton Improvement District, as applicable
and as fairly allocated.
Respectfully submitted,
-45-
CASSIDY\HCMNEGOE.2\12-22-94
, .
2
3
4
5
6
(ENDORSED)
FILED
SAN UA TED COUNTY
MAR 1 0 1994
C:ark ct. the SlJI"...erior {MJrt
Bv~;JmAHA lAARCOr'UL03
. ~
c:.o.u;-( C~C..~
7
SUPERIOR COURT STATE. OF CALIFORNIA
8
COUNTY OF SAN H~.TEO
9
10
CITY OF PLE?SANTON, a municipal
corporation,
11
Petitioner and Plaintiff,
12
vs.
13
14
CITY OF DUBLIN, CITY OF DUbLIN CITY
COUNCIL and DOES l THROUGH lOO,
15
Respondents and Defendants.
/
16
17
GEORGE BUTLER, DARYL ROON, CAROLYN
MORCfu~, GREENBELT ALLlp~CE, a
California non-profit corporation,
and PRESERVE AREA RIDGEL~~DS .
COMMITTEE, a California non-profit
corporation,
18\
19
20
Petitioners,
21
22
23
vs.
CITY OF DUBLIN, DUBLIN CITY
COUNCIL, and DOES l-lOO
24
Respondents.
25
JENNIFER LIN, and the city of
Pleasanton,
26
Intervenors.
27
28
EXHIBIT A
No. 385533
Alameda County Case No.
No. V-Q06477-8 VO
MEMORANDUM OF DECISION
/
/
1
INTRODUCTION
2
The captioned matter comes before the Court upon the
3
Petition of Butler, et al. (hereinafter Butler or Petitioners) for
4
a writ of Handa te pursuant to both CCP 51085 and CCP ~1094. 5
5
against the City of Dublin (hereinafter Dublin) attacking the
6
validity of the California Environmental Quality Act (hereinafter
7
CEQA), the General Plan Amendment (hereinafter GPJ>..) , and the
8
specific Plan (hereinafter SP) adopted by Dublin with reference to
9
the East Dublin Planning J>..rea (hereinafter EDPA) pertaining to
10
Dublin's
of
Influence (hereinafter SOl)
previously
Sphere
11
established by the Local Agency Formation Commission (hereinafter
12
LAFCO)
for the area easterly of Dublin I s present eastern city
13
north of
Interstate Highway 1-580 and
. .. -.J-\."
SOUi:.n or: ~..e
boundaries,
14
Alameda Contra Costa County boundary line.
15
The earlier Petition for Writ of Mandate filed by the
16
city of Pleasanton (hereinafter Pleasanton) was heretofore
\
dismissed with prejudice and is not be!ore the Court. By orders
17
18
made in the Superior Court o! Alameda county prior to the transfer
19
of the case(s) to this Court, Jennifer Lin (hereinafter Lin) and
20
Pleasanton were allowed to intervene in the Butler Action.
Lin is
21
a substantial property owner in the EDPA, desires to develop her
22
property and was one of the earliest proponeDts of development in
23
the EDPJ>.., participated from the beginning as one of the Significant
24
Property Owners
(hereinafter SPOs) in the proceedings before the
25
Planning Commission and City council of Dublin. Her Complaint in
26
Intervention is supportive of the actions of Dublin in adopting t:-J.e
27
Environmental Impact Report (hereinafter the EIR), the GPA and the
28
SP for the area.
Any decision hereinafter made which favors Dublin
2
1
will therefore be In favor of Lin and for the purposes of this
2
Court I S determination no distinction will be made between the
3
position of Dublin in responding to the Butler Petition and the
4
5
position of Lin on her Co~plaint in Intervention.
Pleasanton was permitted to intervene by an Order of the
6\
7\
8
Hon. Joseph Carson, Judge of the Superior Court of the County of
Alamecta, on September 20, 1993. Judge Carson limited Pleasanton's
intervention to its status as a property owner within the EDPA
9
(Pleasanton owns a Hunicipal Water Tank site on a knoll easterly of
10
Tassajara Road and northerly of Gleason drive), thereby eliminating
11
its status as a Nunicipal corporation acting on behalf of its
12
Furthermore, Pleasanton by virtue of a
citizenry as a whole.
.13
written stipulation entered and filed on September 2~, 1993, agreed
14
that it would not raise any CEQA issues in its Petition nor
15
argument before the Court. The Court accordingly at the tine of
16
hearing herein restricted Pleasanton I s participation to those
17 i
matters involving alleged arbitrary and capricious acts or Dublin
18
I
19
".
In adopting the GPA and the SP.
In the pleadings riled herein the standing and status of
20
several of the Butler Petitioners was disputed by Dublin. Prior to
21
the commencement of the hearing, Dublin waived in writing any
22
attack on the status of the Petitioners other than as to Petitioner
23
Hoon. On the day of hearing, the parties further orally stipulated
24
that Eoon does have standing and that there are me~bers of the two
25
non-profit Petitioner organizations who do reside in and/or own
26
property In Dublin.
Accordingly, all attacks upon the status or
27
standing of the But~er ~etitioners became moot; and it ~as
28
ackno',.;ledged bv all pari:ies that Pleasanton did have standing as a
3
property owner within the EDPA.
2
Based on a 11 of the foregoing, hearing/trial, oral
3
argument, etc., were held on February 3, 1994.
Prior to the
4
hearing the Court was furnished with two Bekin's boxes full of the
5
administrative record, a very large ring binder of "Respondent's
61
7\
8
Evidence Book", a compilation of the CEQA statutes and guidelines,
four v~lumes of Court files and records, together with voluminous
and well-prepared Memoranda of Points and Authorities which were
9
reviewed by the Court over a period in excess of five days
10
preceding the hearing.
No ora~ testimony nor other documentary
11
evidence (other than several large and helpful maps of the subject
12
area) was introduced at trial. The matter accordingly proceeded to
13
trial/hearing based upon the e.dministrative record (and ve.rJ.ous
14
excerpts contained in the Respondent1s Evidence Binder), various
15
declarations, the pleadings, e.nd the l1emoranda of Points and
16
Authorities filed by the pe.rties. J..ttached hereto and incorporated
17 \
by reference for ease of understanding the location, etc., of the
18
",
eastern Dublin area are Exhibits J.. and B, being maps of the area on
19
which the boundaries of the General Plan J.~endment Area and of the
20
Specific Plan boundary e.s well as the General Road Le.yout within
21
the specific Plan area are delineated.
22
REQUESTS FOR JUDICIAL NOTICE~ ETC.
23
Dublin I S requests for judicial notice that (1) the
24
referendum on the Eastern Dublin General Plan and Specific Plan was
25
passed by the voters, and (2) the certification by the Registrar of
26
Voters as to the outcome of that referendum election, are granted.
27
Pleasanton~'s requests for judicial notice of (1) the tax
28
bill on the property owned by Pleasanton within the project area
"
..
and (2) the official records of the Alameda County Office of
2
Treasurer and Tax Collector are granted.
3
Dublin's ~equest to be allc~ed to amend its Answer lS
4
granted.
5
APPLICABLE STANDARDS OF REVIEW
6\
7\
8
The Butler Petitioner's caption their Petition for writ
'.
of Manslate as being made under and pursuant to: "CCP 51085\1094.5;
Gov.Code 565302 et seq; Gov.Code 565450 et seq; and Pub.Res.Coce
9
521,000 et seq.1l Petitioners are accordingly seeking relief under
10
concepts of "Traditional Handate" and "l>.dministrative Handate. II
11
Different standards of review are applicable under the different
12
theories and CEQA itself recognizes these distinctions:
13
"Tradi tional nandate, as codified in section 1085, is the
modern ecuivalent of the common law Dreroaative writ of
- - -'
ruandamus, and may be issued by any court, except 2.
municipal or justice court, to any inferior tribun2.l,
board or agency "to compel the perfOD:lanCe of an aci;
which the law specific2.lly enjoins, as a cuty resulting
from an office, trust, or station; or to compel the
admission of a party to the use and enjolwent of a right
or office to which he is entitled, and from which he is
unlawfully' precluded. by such lm:erior tribunal,
corporation, board or person. II (~~ 1084, 1085; 8 Witkin,
Cal. Procedure (3d ed. 1985) Extraordinary Writs, ~4, pp.
643-644) Administrative mandate (~1094.5), on the other
hand, is the procedure used to obtain judicial revie,;{ of
adludicatorv decisions (i.e., decisions determining what
the facts are in relation to specific private rights or
interests) of state-level or local governr.tental bodies.
(Deering, Cal. Administrative Mandamus (Cont.Ed.Bar 2d.
1989), ~l.l, p.2)
14
15
16
17
18
19
20
21
22
23
CEQA recognizes this inherent distinction. It re~uires
a petition for writ of administrative mandate when an
action seeks revier..,r of a Ildetermination, finding, or
decis ion of a public agency, made as a result of a
proceeding in which by law a hearing is required to be
given, evidence is required to be taken and discretion in
the determination of facts is vested in a public agency,
on the grounds of noncompliancell with CEQl>.. (Pub.
RescurcesCcde 521163.) Conversely, CSQA reaUlres a
24
25
26
27
28
5
'\
61
I
7\
8
petition for a writ of traditional mandate in all other
actions brought lito attack, review, set aside, void or
annul a determination, finding, or decision o~ a public
agency on the grounds of noncompliance with CEQA, in
which event lithe inquiry shall extend only to whether
there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded
in a manner required by law or if the determination or
decision is not supported by substantial evidence. 11
. (Pub.Resources Code,S21168.5; Del Mar Terrace
Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th
712,729).11
2
3
4
5
9
Western states Petroleum Association, v. SUDerior Court
(Air Resources Boardr Real Party in Interest) 94 LADJ DA..~
431, 432 (1/12/94).
10
Accordingly,
to
the
extent Butler
attacks
the
11 determination, findings, or decisions of the Dublin city council
12 following evidentiary hearings, this Court must apply the. test of
13 whether or not the ultimate conclusions are supported by
14 substantial evidence.
15
To the extent Butler seeks to set aside, void or annul
16 the determinations, findings or decisions of Dublin on procedural
17 nonlcompliance grounds, this Court's inquiry must extend only to
18 whether there was a prejudicial abuse of discretion.
I
19 F.buse of discretion is demonstrated in c. traditional
20 mandate case if the legislative actions of Dublin were arbitrary
21
and/or capricious. Administrative mandamus pertains to the quasi
22
judicial (evidentiary hearings required) functions of a City
23 Council and the test to be applied by the reviewing Court is
'24 whether or not the ultimate conclusions reached by the body politic
'25 are supported by substantial evidence.
(See No oil. Inc. v. citv
26 of Los F.naeles. (1974) 13th Cal-3d 68,79).
27\
28 I
I
I
I
I
CEQA attacKs are therefor a hybrid, for as the Seccnd
Appellate District, Div. One, said in Western Statesr supra:
6
, \
1 I
2
4
IIUnder CEQA t S definition, however, t abuse of discretion I
does not mean 'abuse of discretion. I In the wonderland
of environmental review, it means the agency has either
'not proceeded in a manner required by law' or that its
t decis ion is not supported by substantial evidence. I
(Pub.Res.Code, ~21168.5.)" (Ibid 434).
3
5
Hopefully, the Court in reaching its decision hereinafter
set out has applied the proper standard of review to each of the
6,
I
I
71
I
8
aspects of the Butler Petition and the Pleasanton Petition in
Intervention.
9
CEOA ISSUES
10
In determining CEQA issues it is important to note at the
11
outset
that the law presumes CEQA procedures/actions and
12 particularly the determination and adoption of the Final
13 Environmental Impact Report (hereinafter FEIR) to be valid and if
14 the CEQA proceedings are to be attacked, Petitioner Butler, et ale ,
15 herein, must be specific in both alleging and proving the contended
16 inadequacies andlor areas of non-compliance (T.aure 1 Heiahts
17 Imrlrovement Assn. v. ReGents of the Universitv of California (1988)
18 47 Cal.3d. 376, 393; (Laurel Heigp.ts I] citv of Lomite. v. Citv of
19 Torrance (1983) 148 Cal.App.3d 1062). It is equally important ~n
20 \ considering this aspect of 'this case to keep in mind that we are
21 here dealing with a lIprogramll EIR being developed and utilized for
22 support of and In conjunction with Dublin's Zoning and Planning
23 Legislation for an area within its SOl and not yet within its city
24 boundaries, not for a development or project specific analysis
25 pertaining to the construction of public or private structures.
26 Such an ErR for long range planning and zonlng purposes lS
27 necessarily general (Vill aae LaGuna of Laauna Beach v. Ed. of
28 SUDervisors of Orance Count'! (1982) 134 Cal.App.3d 1022). It lS a
7
.1
tool In aid of informed soeculation as to where, when and hO'.oI
2
Dublin will expand into its easterly sphere of influence. over 10,
3
20 or 30 years.
4
The Court also notes and commented at the hearing hereon
5
that Butler in his Petition acknowledges that Petitioners do not
6
object to lJanylJ development in the EDPA; and while the Petition
7
i tself_ alleged a market basket full of purported defects,
-.>-
c:.\...
8
hearing Petitioners seemed to settle on just five areas of real
9
concern, namely: (1) water, (2) sewer, (3) traffic, (4) financing,
10
and (5) agriculture open space, plus (6) a failure to re-circulate
11
the DEIR before certifying the FEIR and adopting the GPA and S?
12
Resolutions.
It is not up to this Court to subst;.itute its own
13
judgment in any of these matters but only to determine if Dublin
14
failed to follow statutory procedures thereby abusing its
15
discretion and if there is substantial evidence supporting Dublin I s-
16
findings which led to its certification of the FEIR.
i
17
The purpose of an EIR is to provide information to
.>-'
\...ne
18
governmental body so that it may make an informed decision as to
19
whether or not a particular program, project or development should
I
20
be adopted or rejected, approved or disapproved.
Its purpose is
21
also to make the public aware of what is being contemplated and
22
considered by the body politic so-that th~ decision makers may
23
receive input from directly and indirectly involved and interested
24
citizenry (Pub.Res.Cd ~21061). To these ends the Public Resources
25
Code sets out certain procedures to be followed in developing the
26
EIR, affording all interested parties including the general public
27
the opportunity to cqmne~t thereon, for responses by the bcdy
28
politic, the weighing cy the governmental body of the benefits and
8
detriments of the program, project or development, to develop means
2
of mitigating any detrimental impacts, and to the extent impacts
3
cannot be rni tigated, to determine whether or not the program
4
proj ect or development s,hould nonetheless go forward because of
5
overwhelming benefits to be derived therefrom. (Pub. Res. Cd. ~21000
6,
\
7\
8
et seq; CEQA Guidelines ~15,OOO et seq.)
consider
The subject project/program to
long-range
planning for the development of Dublin I s easterly sphere of
9
influence commenced at the behest of Intervenor Lin in March of
10
1987 and culminated on Hay 10, 1993, some six years later, when the
11
ci ty Council of Dublin certified the FEIR with addendum and adopted
12
both the GPA and the SP for the EDPA.
13
. . .. '.j... .
~nese ae~ermlna~lons,
Dublin was required to
To reach
14
make at least one of three findings before the project/program
15
could proceed, namely:
16
(a) Hitigation' factors have been identified and
17
incorporated into the FEIR;
18
I
19 I
20
(b) Such mitigating changes or alterations are within
the responsibility of another public agency which has, can, or
should adopt such mitigating factors;
21
(c)
Specific economic, social or other consideration
22
make infeasible the mitigation measures identified in the EIR.
23
("Pub.Res.Cd.~ 21081")
24
It is only necessary that the public agency base its
25
findings pursuant to Subdivision (c) above on IIsubst2.ntial evidence
26
in the record. II
(Pub.Res.Cd. 521081.5).
Pub.Res.Cd. 521081.6
27
further requlres Dublin to establish a reporting or monitoring
28
program to see to it that the mitigating factcrs identified are
9
. \
complied with during the period of project implementation.
2
In meeting these requirements it lS sufficient that
3
Dublin has received and reviewed consultants' reports, received
<1
comments from and discussed those comments with the public from all
5
of which substantial evidence of enough relative information, and
6
reasonable inferences from the information, has been obtained such
7\
8
that c,.. fair argument can be made to support a conclusion even
though other conclusions might be reached.
(CEQl>. Guidelines
9
~15384) .
10
In the case a~ bar, Dublin more than amply met all of
11
these requirements. In addition to activities of its own Planning
12
.
Department, City Engineer, city Attorney, etc., Dublin engaged the
13
services of outside consultants to prepare detailed studies of the
14
entire environmental iiUpact of the program on the SP area, the
15
whole of the EOPA, and surrounding com...",;mnities. (Adwin.Rec. VII:_
16
1660-1661, 1677; XVII: 3369-3598; XVIII: 3719-3751, 3761, 3763,
17 \
3775-3782 3789-3832, 3833-3862, 3941-3951/3952-4021).
18
At the outset, Dublin irivited all property owners within
19
the EDPA to directly participate in both the CEQA and the planning
20
aspects of the project. Those property OTNTIers who responded were
21
formed into an SPO co~~ittee and throughout the six years of study
22
effort actively participated in all aspe~ts:: of the program.
(A-~
23
VII: 1631-1632, 1641, 1660-1664, 1677). The SPO's also provided
24
significant financing for both private and public studies made with
25
regard to the program.
26
Numerous public meetings were held by both the Dublin
27
Planning commission ~nd the Dublin City Council. (VI: 1427; VII:
28
1718; XVI: 3597-3598; IX: 1908-1935; X: 2026-2028,2033-2040,2070,
10
2074,2099-2110,2112-2113,2116-2123, 2127-2133,2169-2174,2188-
2
3
2197; XI: 2250-2582; XIII: 2583-2736; XV: 2905-2944, 2998-3047).
While neither the mere holding of meetings nor the number
4
of meetings is itself determinative of whether or not Dublin abused
5
its discretion in certifying the EIR, the fact that the meetings
6,
I
I
7\
8
were held, the public did provide both written and oral comments!
there.were discussions thereof among staff! consultants, commission
and council members and the public, the reaction of Dublin thereto,
9
the incorporation of some of the comments and the rejection of
10
others and the approval or rejection of varlOUS suggested
11
mitigation measures, all leading to the adoption of IIAlternative 211
12
with modifications, support the conclusion that Dublin did not
13
abuse its discretion in certifying and adopting the FEIR in May of
14
1993.
(XIII: 2694-2695, 2724-2725; XIV: 2805-2817; XV: 2902-2903,
IS
2919-2921; VI: 1459, 146011.-1460B, 1464A-1464B, 1465-1610,1533:':"
16
1538) .
17 i
Dublin properly instituted an investigation into how to
18
!
19 !
best plan for the development of the EDPA and its easterly SOl as
established by L~FCO.
(VI: 1616, 1631-1632, 1660-1661, 1677).
.,-.1-
.1.'-
I
20 I
provided proper public notice and notice to all required interested
21
agencies of its intent to prepare an EIR for the GPA and SP.
22
Meetings and comments were held and received'on the scope of the
23
proposed EIR (VI: 1427; VII: 1718; XVI: 3597-3598; XVII: 3618-
24
3695) _
25
Over an approximate two-year study period 450 pages, more
various analyses, reports, etc., were prepared for and
the CitY.'Council and the Planning Commissioi1. Nume::.-ous
and extended joint work sessions, study sessions and public
11
2
')
..J
4
5
6
7 \
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
~Q
Lu
I
!I
[I
,I
meetings were held with regard to both the ErR, the GPA and the SP.
(For a summary of all of these activities see Dublin's Memorandum
In Opposition pages 6 through 14].
There lS no requirement that everv conjectural or
conceivable alternative to the program, the EIR, and mitigating
methods be explored. (Guidelines S15126(d) (5); citizens of Goleta
Valley vs. Bd. of SUDerv1sors (1990) 52 Ca1.3d 553, 566; ville.oe
Laauna, supra, 1022; Las viraenes Homeowners Federation, Inc. vs.
County of Los l<.naeles (1986) 177 Cal.App.3d 300, 307-308). only
that
reasonable
possibilities have
been investigated and
determinations made based on substantial evidence of what could
likely occur over the next 20 - 40 years.
Petitioners argue strongly that Dublin abused its
discretion and acted cap::-iciously and arbitrarily by not taking all
procedural
necessary to create a supplemental EIR
steps
(hereinafter SEIR).
I
Petitioners contend that changes which were
made In adopting p.lte:-native 2 with modifications constitute
Ilsignificant new inforlliationll in the EIR so as to require its
recirculation for public cOIilillent before certificaticn pursuant to
Pub.Res.Cd.~521092.1, 2~166 and Guidelines ~~15162 and 15163.
Fortunately for this Court the California Supreme Court
has very recently provided guidanc:~- in what is now knO'.o/n as llLaurel
Heiahts II" as follows:
"We conclude that recirculation is only required when the
information added to the EIR changes the ErR in a way
that deprives the public of a meaningful opportunity to
comment upon c substantial adverse environmental effect
of the project or a feasible project alternative or
mitigation neasure that would clea:-ly reduce such an
effect and' t2.2.t the project I s proponents have declined to
implement. ~e further conclude that a decision not to
recirculate cn ErR ruust be supported by substantial
evidence."
12
2
Laurel Heiahts IrnDrovement Assn. v. ReGents of the
Universitv of California (No. S027252, 12/30/93) 93 L?DJ
OAR 70, 71 ((1/4/94]).
3
From the foregoing it is clear that before recirculation
4
or lssuance of a supplemental EIR draft, its circulation, comment
5
thereon and inclusion within the FEIR is required, the subject
6
7\
8
change or changes must have "a substantial adverse environmental
effect" or propose a "feasible project alternative or mitigation
9
measure that would clearly reduce such an effect". (Laurel Heiahts
II, supra, 71).
10
In the case at bar, Dublin considered whether or not the
11
changes in reducing the SP area, eliminating the transit ppine and
12
adopting Alternative 2 would have a "substantial adverse
13
environmental effect" on the project. (XIII: 2694-2695, 2724-2725;
14
XIV: 2805-2817). Dublin found that each of these things would have
15
a beneficial rather than an adverse effect upon the project (III:
16
1 0 Q 4 ~ 1 .L 1 4 63 14. 64. .:1.-14.64 H) .
I; v'- : ~, -
There is substantial evidence
17
supporting these findings and copclusions and further supporting
18
\ the proposition that ecch of the material items pertaining thereto
19 !
i had already been considered in the DEIR, the co~~ents thereon and
20
responses thereto such that nothing could be gained by preparing
21
and circulating a supplemental EIR or recirculating the DEIR. (III:
22
856; I: 369-370, 378-380; II: 533",- 711-712.' See for example those
23
portions of the Administrative Record dealing with traffic impacts;
24
I: 136-172, 144-148, 152-154, 369-370, 378-380; 11:533, 711-712;
25
26\
III: 856, 990, 992-993, 997, 998-999, 1000-1001, 1022-23; VI: 1467-
1474, 1533-1538.
Si:c.ilar considerations were given to sewer,
j"'
~/
agricultural, water' and agricultural impacts. Further this Court
28
lS required to resolve ~easonable doubts in favor of the
J...J
. \
'I
1
administrative finding and decision not to recirculate the ErR.
2
3
(Laurel Heiahts I, 393; Laurel Heiahts 11,76).
Everyone of the possible changes in the EIR had already
4
been publicly noticed and commented upon in considering the DEIR
5
and the proposed GPA and SP.
To recirculate the EIR would have
6,
I
7\
8
been redundant and meaningless.
Butler attacks the substance of the EIR on the additional
grounds that the analysis of the impact on agriculture is
9
inadequate, that the analysis of transportation impacts, mitigation
10
measures and alternatives is inadequate; that the analysis of water
11
supply impacts, significant effects, and mitigation measures is
12
.
inadequate, that the analysis of waste-water impacts is inadequate;
13
and that there was inadequate discussion of project alternatives.
14
administrati ve
record discloses
that
Dublin
The
15
considered four project alternatives:
(1) no project, (2) no
16
development, (3) reduced planning area, and (4) reduced land use
\
intensity. (I: 340-360). A further alternative of keeping the
entire EDPA as a massive green belt was indeed not explored by
17
18
!
10 I
'I Dublin.
20 ;
Dublin's failure to do so is not fatal to the EIR as to
adopt such an alternative would go even beyond consideration of the
21
alternative of "no project".
A rule of reason must prevail in
22
these
matters
(Las
viraenes,-- supra,
303-308;
Guidelines
23
~15216 (d) (5)) .
24
The record reflects that Dublin did consider the
25
agriculture impacts of the project, and applied Cortese-Knox
26
standards as to \",hen prime land can be developed. Dublin concluded
27
that there are only.~OO acres of prime land in the area presently
28
devoted to agr icul ture generating an economically unsound return of
14
1
'2
3
4
5
6,
I
I
7;
I
8
9
10
III
12
~
13
14
15
16
17
only $100-$200/acre/year. (III: 854). In mitigation of the loss
of the existing agricultural cum green belt areas, the ErR proposes
numerous neighborhood and other parks, green belts along waterways,
protection of ridge lines and visual angles, etc. (See Maps) .
It is to be further noted that substantial portions of
the present agricultural lands are being so utilized pursuant to
provisions of the Williamson Act. Absent further administrative
proceedings by the owners of these lands, as long as 10 years might
still have to elapse before any of these lands could be utilized
for urban purposes.
(I: 86-87).
Petitioners, of course, have the heavy burden of proof to
.
specify each and every area where it is contended that the analysis
of any particular impact has been inadequate. (Mann vs. Communitv
Redevelooment Aaencv of citv of Hawthorne (1991) 233 Cal.App. 3d
1143, 1151; Lomita. supra, 1069-70). Petitioners have failed to
sustain this burden.
The EIR assesses the significance or traffic impacts
18\ based upon a Level of Service (LOS) approach.
19
(I: 138-140).
It
breaks the traffic impacts down into three categories, namely: (1)
20
impacts without the program (I: 157; III: 990), (2) impacts for
21
which mitigation is feasible (III: 992-993, 995-996, 998-999, 1001,
22
1022-1023; (VI: 1467-1474) and Pi_impacts f.or which mitigation is
23
not feasible (III: 991, 997, 1000, 1022-1023; VI: 1467-1474, 1533-
24
1538). Petitioners present no evidence whatsoever to support their
25
contention that any or all of the traffic impact mitigation measure
26
studies were cursory. To the contrary, the record clearly reflects
I
27\
28
consideration of all .reasonably probable future traffic conditions I
roadway improvement, financing and implementation.
(I: 136-172,
15
144-148, 152-154; IT. 711-712; III: 987-1002).
All of the
2
requisite Levels of Service (LOS) as well as "Transportations
')
oJ
Systems Management" (TSM) alternatives were thoroughly considered
4
by the City.
(I: 138-140; III: 991, 997, 1000, 1022-1023).
5
It is important to remember that we are here dealing with
61
7\
8
a long-range planning program, not a specific development EIR. The
amendment to the General Plan and the General Plan in essence
consti tute a constitutional framework under which specific
9
developments can be addressed in due course as they arise over the
10
It is a human, financial, legal, and practical
next 40 years.
11
impossibility for us today to predict what the LOS requirements
12
will be at any given intersection 40 years from now. -All that can
13
be done is to say that--as does the Plan here in issue--that
14
certain things are reasonably foreseeable, some of these proble~s
15
can be mitigated, some cannot, and that changes in the assumptioD?
16
made will necessarily trigger future CEQA review (Villaae Laauna,
17 \
supra, 1029-1030).
18
Petitioner1s contend with regard to almost all of their
19 I
20
obj ections to the
EIR, the GPF., and the SP that none of these
provide for proper "phasingll of the development of the EDPF.. The
21
Court views this as a nen-sequitur. Neither the Public Resources
22
Code, the CEQA Guidelines, nor the Governm~nt Code, require, nor
23
are there any cases requiring specific parameters for Jlphasing" the
24
development of the project area.
25
Nonetheless, throughout the EIR and the SP it is implicit
26
that IIphasing" '..Jill necessarily take place.
First, in a general
27
sense, geographical, p:nasing can only occur as each immediately
28
easterly and/or northerly parcel of land is annexed to Dublin.
16
Second, Pub.Res.Cd. 521166 specifically requ~res re-examination of
2
this Program ErR as ne'.... information becomes available over the next
3
three or four decades. The overall Dublin Plan requires that as
4
each step project or development comes before the City, a new ErR
5
will have to be prepared.
(V: 1306; I: 55; V: 1355; Appendix 6 to
6\
7\
8
the SP).
the
that
EIR
contend
strenuously
Petitioners
lS
inadequate in its consideration of water, waste water and sewer
9
impacts.
Petitioners are particularly concerned because much of
10
the future problems in this area necessarily involve determinations
11
by at least three other agencies [the Livermore Amador Valley Water
12
.
District (hereinafter LAVWD) , the Dublin San Ramon Water District
13
(hereinafter DSRWD) and the Tri-Valley Water Agency (hereinafter
14
TWA) ] .
15
administrative record is
replete with
, J- ... ~
SUDs\..anl..la.l
The
16
evidence that the Planning Commission and the city Council of
17 i
Dublin considered in depth the infra-structure problems associated
18
with this Program EIR. Testimony was taken from and input given by
191
I
20
each of the associated agencles. The overall plan requires that as
each. specific development comes along, before approval of a
21
IIwill
serve"
letters
will be
tenta ti ve map
... .
gran I..ea,
will
be
22
required from each of the associ~t~d infra-structure agencies (V:
23
1306; Chapter 11, Implementation Plan of the SP; and various other
24
locations throughout the AR too numerous to list here).
25
Peti tioners argue that certain of the language throughout
26
the documentation is not sufficiently mandatory. For example, the
27
use of the word "shouldll instead of the word lIshallll and the word
28
"encouragell rather than the word IIrequire" with regard to the
l'
-.
2
3
10
11
obligations of developers to mitigate adverse environmental impacts
relative to specific development projects and the EIR's which will
be required pertaining thereto.
4
In the cou~se of oral argument it was pointed out that
5
"should" is defined in at least one dictionary as being an
6:
I expression of "obligation or duty." (The American Heritage
7\
DictiGmary, 2nd college Edition, 1134). Further, Black I sLaw
8
Dictionary, 4th Edition, 1549 defines "should" as Ilordinarily
9
other dictionaries have similar
implying duty or obligation. II
definitions. Similarly, lIencourage" is defined as lito instigate or
to incite to action" (Black's Law Dictionary, 4th Ed. 62,0) and is
12
deemed synonymous with the word "instigate" (Funk & Wagnalls New
13
Practical Standard Dictionary (1952) 434).
Since the progran
14
"will
c:,.....,.-....-IJ
_ t:::::_ v t::
letters from the associated agencies
requlres the
15
before a specific developwent ErR will be approved in the future,
16
thE1 net effect is the sane as if the word Ilrequirell had been used
17
instead of the word "encourage".
18
The Court therefore finds ln the context of the ErR, and
19
to the extent pertinent to the SP and the GPA, the use of "should"
20
lS synonymous with "shall" and is mandatory and "encouragell is the
21
equivalent of "require".
various phasing and implementation
22
aspects of the overall program/I?~bject therefor constitute pre-
23
requisites which must be met before any specific development plan
24
will be approved and before commencement of any physical activities
25
to carry-out any such development plan.
26
27 I
281
\
I
None of the associated agencies can obviously provide
letters u::less
. . +- .
lTI a pOSl1.10D
they are indeed
to
"will
servell
provide the requisite ~ater, sewage, waste water, etc., infra-
18
· 1
1 .
2
structure. The needed facilities cannot be constructed without
appropriate financing.
The "Implementation Plan" set out In
3
Chapter 11 of the SP (V: 1306, et seq) sets up 5 to 10 sub-areas
4
for planned development including all specifics of the infra-
5
No particular development can take place until
structure needs.
6
after LAFCO has approved the service plans. Appendix VI to the
7 \
Implementation section mandates inter-action of Dublin, the DSRSD
8
and the developer.
It makes provision for phasing, funding and
9
construction of the necessary infra-structure (V: 1355, et seq).
10
Specific financing problems will therefore necessarily be addressed
11
as each particular development project matures.
The foregoing demonstrates that Dublin complied1with the
12
13
requirements of the Public Resources Code and the CEQA Guidelines
14
in promulgating the DElR.
There was no significant impact
15
the
course
of finalization to requlre the
developed
In
16
recircularization of the EIR nor the preparation of a supplemental
17
\
EIR.
The FEIR is supported in all particulars by substantie..l
18
evidence in the record.
'.
19 i
20
PLANNING ISSUES
The foregoing CEQA issues are so inter-twined with the
21
planning issues that they are fully incorporated herein and
22
constitute a part of the determination of the Court with regard to
23
the GPA and SP.
24
Philosophically and legally, a Genera} Plan is in effect
25
a constitution or statement of policies for the overall development
26
of a City, etc. /; a Special Plan constitutes a bridge to the zoning
27
of particular areas. within the General Plan boundaries; and the
28 \
\
Government Code mandates that:
19
1
2
3
4
5
10
11
(a) A Specific Plan shall include a text and a diagram
or diagrams which specify all of the following in detail:
(1) The distribution, location, and extent of the
uses of land, including open space within the area
covered by the plan.
6\
7\
8
(2) The proposed distribution, location and extent
and intensity of major components of public and
private transportation, sewage, water, drainage!
solid waste disposal, energy! and other essential
facilities proposed to be located within the area
covered by the plan and needed to support the land
uses described in the plan.
9
(3) Standards and criteria by which development
will proceed, and standards for the conversation,
development, and utilization of natural resources,
where applicable.
13
(4) ]i.
including
proj ects,
carry-out
implementation measures,
program, public works
measures necessary to
( 2), and ( 3) .
12
program of
regulations I
and financing
Paragraphs (1),
14
(b) The specific Plan shall include a statement of the
relationship of the Specific Plan to the General Plan.
(Gov.Cd.~65451) .
15
16
Petitioners a~d Petitioner In Intervention first contend
17
i
that the SP is not consistent with the GP (nor the GPA) since the
18
GP requires that the S:? have no "fiscal impact upon the City of
19 Dublin nor its taxpayers. The SP, however, acknowledges that there
20 I will be .'shortfalls in the first few years of development under the
SP until such time as the developments to be created start
.21
22
generating sufficient tax income to fund themselves and any bonded
23
indebtednesses required to create-infra-structu=es.
24
The SP meets these claimed deficiencies by establishing
25
that Dublin has sufficient cash reserves which, if necessarv, can
26
be IIdrawn-dm.mll to fund initial infra-structure c:::-eation.
( .'\.. '\ :
27
1293 et
SP
Ch..10) .
The plan provides that no development
sea"
_ ,
281 shall be permitted without (1) infra-structure financing, and (2)
\ 20
I
1
infra-structure availability. Development agreements with the land
2
owners can be required (SP, Chapter 10, Pages 1295, 1296i
3
Admin.Record Page 1309) including detailed financial plans. (SP
4
Page 1308). All of the analysis hereinabove set out with regard to
5
"shall", Ilshould", lIrequirell, and "encourage II , is applicable to all
6
When coupled with the
financing questions under the SP.
7 \
8
repre~entations and promlses of the DSRSD, the TWA, and the LAVWD
that they will live up to their obligations to supply adequate
9
water, waste and sewage infra-structures (and the financing
10
measures necessary to carry-out these obligations) as each specific
11
development comes along, there has been sufficient compliance with
12
GC Cd.564541 (4).
13
The SP encc:upasses much more than merely res idential
14
zoning and development.
It makes provision for cOThuercial,
15
industrial, professional, and other substantial income-generating
16
This Court is obligated to accept the interpretation of
17
uses.
\
Dublin's city council as to the intent, meaning and effectuation of
18
its own Specific Plan (see No oil. supra) and it is a fundamental
19 I
!
20 t
proposition of statutory interpretation to resolve ambiguities or
doubts in favor of the statute being legal and enforceable if
~....
c.\...
21
all possible.
(See SP Chapter 10, Financing, AR Pgs.1293-1304j
22
Chapter 11, Implementation, AR Pgs.1309-1310; Appendix 7, Fiscal
23
Analysis, AR Pgs.1399-1407i EIR Comments and Responses, AR Pgs.683,
24
828, 861, 863-864, 880,901; l-!itigation Monitoring Plan, Sec.3.12,
25
Fiscal Considerations, AR Pgs.1608-1610; Memo, 2/19/93, Economics
26
Pursuant to Garrett vs.
Research Associates, AR Pgs.2707-2710).
27
Riverside, 2 Cal.App:4 255 and Calavaras, supra, and the foregoing
28
III
21
1
factual recital, the correlation requirements of Gov. Cd. 565451
2
appear to have all been met.
3
Peti tioners and Petitioner-In-Intervention further attack
4
the GPA and the SP (particularly the SP) on the grounds that it
5
(they) is (are) internally inconsistent.
6\
I
71
I
8
Gov.Cd.565302 sets out a laundry list of required
provisions in an SP. Petitioner and Intervenor argue that the SP
makes no plan for, or inadequate plans, for (1) zoning for low-
9
income housing I (2) details correlating infra-structure elements of
10
sewage, roads, and water with land use and (3) that the "will
11
serve" letters do not satisfy the SP requirements of specificity
12
set out in the Government Code.
13
While Gov.Cd.~65302 requires that a General Plan shall
14
include a housing element and Gov.Cd.565580 requires that element
151
16
to include a low-incoille housing provision, Gov. Cd. 565451 imposes no
such requirement for a specific plan. The subject SP is therefore
i
neither inconsistent ~ith the General Plan housing ele~ent
17
18
containing a low-income housing provision nor J..S it internally
I
19
inconsistent with a non-required element.
20 I
Similarly, the SP is neither inadequate, incomplete, nor
21
internally inconsistent with regard to water, sewage, etc., insofar
22
as Gov.Cd.565451 does not require._any specificity with regard to
23
those matters to the extent they are outside of the area covered by
24
the plan.
(Gov. Cd . 565451 (a) (1) , (2) , (3) , (4) ) .
25
Nonetheless, the SP discusses all of those matters in
26
detail J..n Chapter 8, Table 6, Appendix 6, AR 1212, 1291 and 1280,
27
all as supplemented bv various facilities mans in the SF.
28
//1
22
I'
2
3
10
11
12
From all of the foregoing the Court finds that there is
substantial evidence to support the GPA and the SP, that they are
consistent Hi th each other and with the GP I that they are not
<1
internally inconsistent and that there is no evidence whatsoever to
5
indicate that Dublin acted arbitrarily nor capriciously in adopting
61
7 \
.are broad-ranging 'planning tools which will hopefully be beneficial
8
over a span of 30 to 40 years and all reasonable possibilities were
the GPA and the SP.
Neither of these are project specific, they
9
discussed and reasonable solution determined as could be without a
crystal ball.
CONCLUSION
The Court accordingly concludes and states itsl decision
13
that the Petition and the Petition-in-Intervention are denied.
14
The foregoing shall constitute the statement of Decision
15
of the Court unless any party hereto requests further proceeding?
16
with regard thereto as provided by law. In the event such request
'is\made, counsel for Respondent city of Dublin shall prepare the
17
18
statement of Decision.
19 I
I
20
DATED:
21
22
23
24
25
26
27
28
MAR 1 8 1994
HARlAN K VEAl..
JUDGE OF THE SUPERIOR COURT
23
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Figure 5. 1
Road System
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...... Arlorial
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Slreet Aroa
4 Numbor 01
Tl1rouoh Lanes
( t3 ) Number 01 Lonas
lor Rioht-or-Wily
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EASTERN DUBLI
Specific Plan
Wnllnco Roborlll l Todd
ut..",.,.., ,'"....w~., ,,,...--.
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AFFIDAVIT OF l1AILING
Case No. 385533
DOCU}fENT: Mill10RANDUM OF DECISION
I declare under penalty of perjury that on the following date I
deposited in the united states Post Office mailbox at Redwood city I
a true copy of the foregoing document, enclosed in an envelope,
with the proper and necessary postage prepaid thereon, and
addressed to the following:
Owen Byrd, Esq.
112 New Montgomery, ste. 640
San Francisco, cA 94105
stuart Flashman, Esq.
5626 Ocean View Drive
Oakland, CA 94618-1533
Elizabeth H. Silver, Esq.
Rick W. Jarvis, Esq.
Gateway Plaza
777 Davis st., Ste. 300
San Lenadro, CA 94577
Dennis C. Beougher, Esq.
Asst. city Attorney
123 Hain Street
P. O. Box 520
Pleasanton, cA 94566
Marthb W. Inderbitzen, Esa.
5000 Hopyard Road, ste. 400
Pleasanton, CA 94588
Executed on
MAR 1.:) 1994
at Redwood city, California.
Ken Torre, Executive Officer/Clerk
By
~.RA ~..ARCOPULC'S
Deputy